The Workplace Report with Ancel Glink

If you are an employer in Illinois (and pretty much anywhere else), you most likely pay worker’s compensation insurance. This insurance provides an employee with benefits and protects an employer from getting sued when an employee is hurt at work. However, many employers are not clear on what injuries are covered by the Worker’s Compensation Act. Employees will only receive worker’s compensation benefits if they suffer an accidental injury. An employee cannot recover for an injury he inflicted upon himself purposefully. Two types of accidental injuries are covered by the Worker’s Compensation Act. The first type is an injury caused by a single traumatic event. An example of this type of injury would be if an employee fell off a ladder and broke his leg. The second type is an injury caused by repetitive trauma. This would include carpal tunnel system suffered by an employee from repeated typing.  Psychological and emotional stress injuries will probably not be covered b...

We recently had a client ask for advice about what to do when an employee doesn’t turn in a timesheet for hours worked, as required by their policy, but later claims that they worked and they are due pay. Their practice had been that it is the employee’s responsibility to turn in their timesheets and if the employee only received pay for the hours reported on the timesheet. No timesheet, no pay.  This seems fair enough on its face, especially with smart phones and other technology which makes it so much easier for employees to work from any location. The only problem is that the law doesn’t support this practice. Under both the Fair Labor Standards Act as well as the Illinois Wage Payment and Collection Act, the employer is responsible for paying wages timely and at the appropriate rate of pay. Additionally, it is the employer’s sole responsibility to keep accurate records of hours worked and wages paid to their employees under these laws. What’s more, even when an employer is...

The United States Supreme Court has issued its long-awaited decision in King v. Burwell , No. 14-114 (June 25, 2015).  By a 6-3 vote, the Court upheld IRS regulations providing that tax credits for the purchase of insurance through “an Exchange established by the State [under 42 U.S.C. §18031]” are available “regardless of whether the Exchange is established and operated by a State .. or by [the federal government].”  By interpreting the ACA in this way, the Court avoided a result that it said “could well push a State’s individual insurance market into a death spiral”. The petitioners in King were four residents of Virginia, which is one of 34 states that have exchanges established by the U.S. Department of Health and Human Services, rather than by the state itself.  The petitioners did not want to have to buy health insurance.  Since they claimed that Virginia’s Marketplace Exchange did not qualify as “an Exchange established by the State”, they should not be ...

Illinois may be one of the worst in the nation in pension funding, but it’s not the only state struggling to figure out how to address the issue. Unlike Illinois, though, where the Supreme Court recently struck down the pension reform legislation, the New Jersey Supreme Court earlier this month upheld the government’s refusal to fully fund public pension systems. New Jersey law, like Illinois, has legislation which grants to public pensioners a “non-forfeitable right to receive benefits”. It also enacted legislation in 2011 that contractually obligates the state to “contribute timely, annually scheduled, required payments to the pension funds, thereby addressing the alarming current unfunded accrued liability and restoring the various funds to fiscally sound levels.” Does this sound like a familiar problem to the people of Illinois? In essence, the state made a contractual promise to pay into the funds to bring them up to acceptable levels of funding.   The problem arose in 20...

Sometimes employers just do it right. They identify a possible ADA issue and take all of the right steps to protect not only its own business interests, but the rights of the employee as well. Take the recent 7th Circuit case of Stern v. St. Anthony’s Health Center, decided earlier this month.  The plaintiff worked for the St. Anthony’s Health Center as chief psychologist since 2002. His job required that he oversee all aspects of the acute care center’s treatment of children, including those with depression, anxiety and suicidal risks. While plaintiff received good evaluations during most of his employment, in 2010 a resigning psychologist reported in their exit interview that plaintiff was exhibiting memory lapses. After further investigation, the employer concluded that that a fitness for duty evaluation was appropriate. The employee agreed on the selection of the doctor to perform it. It turns out that in fact the plaintiff was suffering from memory problems and scored...

Fans of the NFL know that domestic violence has become a serious issue in the league. Last year, star running backs Adrian Peterson and Ray Rice were suspended for almost the entire season after revelations that they engaged in domestic violence. This offseason, the Bears cut defensive end Ray McDonald after he was involved in a series of domestic violence incidents. So, if an employer finds himself with an employee who has engaged in domestic violence, what should he do?   As we have often cautioned, an employer cannot discharge an employee merely because he or she was arrested for domestic violence or any other criminal charge. Just because an employee has been accused of domestic violence does not mean that he actually committed it. Many divorce attorneys say that allegations of domestic violence are used as leverage in divorce proceedings. On the other hand, domestic violence is a serious issue in society that can only be addressed through a zero tolerance attitude by e...

Last week Brookfield Zoo, operated by the Chicago Zoological Society, discharged a worker for posting the comment “rude a** white people” in an Instagram selfie, which she then shared to Facebook. She made matters worse for herself because the photo showed her wearing her Brookfield Zoo uniform and she tagged the location as the Brookfield Zoo. The Zoo has a social media policy which prohibits its employees from discrimination and harassment, including on social media. So, in a time where the trend is clearly to protect the speech of employees, including social media comments, what makes this employer think that this discharge will stick? Consider the following: The former employee was not criticizing either fellow workers or members of management.  The NLRB has lately gone out of its way to find even offensive language by employees to be protected if it is about the workplace and/or management related to their duties in the workplace. The former employee did not make t...

New FLSA Regulations.  Recently, we alerted you to the fact that new regulations governing the “white collar” overtime exemptions under the federal Fair Labor Standards Act (FLSA) have been submitted for final review and approval to the Office of Management and Budget by the U.S. Department of Labor.  As we noted, the effect of the new regulations will be to increase the minimum weekly salary that an employee must receive in order to qualify for exempt status.  In addition, it is expected that there will be changes in the “duties” test to make it more difficult for employees who are now classified as exempt but who regularly perform non-exempt work to retain exempt status. The new regulations are expected to be released any time now. Releases and the FLSA.  In the case of Bodle v. TXL Mortgage Corp., No. 14-20224 (June 1, 2015), the United States Court of Appeals for the Fifth Circuit held that a broadly-worded release executed in connection with a noncompetiti...

Brandon Coats was an employee of Dish Network in Colorado where Dish had a zero tolerance drug policy. Coats had a prescription for medical marijuana although claimed that he never used marijuana while at work. A drug test result of Coats revealed use of marijuana and he was fired from his job. Coats sued his employer, claiming, among other things, that Dish violated a state law which prohibits employers from taking adverse action against employees as a result of lawful off duty activities. The Colorado Supreme Court found in favor of Dish, holding that although use of marijuana was legal in the state for certain medical conditions (and during the pendency of the case, the state made recreational use of marijuana legal as well), marijuana use was still illegal under federal law. The court found that  Coats could not rely on state protections of lawful off duty activities because marijuana use was not entirely lawful, as it was illegal under federal law. The Colorado decisi...

Sometimes employers hire individuals for jobs who are not yet qualified to do the work with the intent that they will train the individual. Public employers do this with police officers and firefighters who have not been previously trained and certified. Similarly, they may hire certain public works employees with the intent to send them for training as water operators or other “specialties”.  The question arises whether the employer has to pay the employee to train for the job and if so, at what rate. The premise for the question is obvious. During training the employee is not providing a value to the employer because he or she is not performing productive work. Rather, they are only learning how to do their job. Shouldn’t the employee be paying the employer for that privilege? The simple rule is that any training that an employer requires its employees to attend is compensable. This is true even if the employee is learning their job for the first time or whether the empl...

Last week, a principal of North Miami Senior High School was removed from his position after he defended the actions of a police officer in McKinney, TX accused of using excessive force. The principal posted a comment on Facebook stating that the officer “did nothing wrong. He was afraid for his life...I commend him for his actions.”  The decision to fire the principal was controversial. Many commentators stated that this decision was a blow to free speech, and even violated the principal’s First Amendment rights. Perhaps sensing that it may have overstepped, the school district announced later in the week that the principal had not been removed from his job, but temporarily re-assigned. This controversy, however, raises an interesting question: had the school district actually fired the principal for his Facebook comment, would it have violated his First Amendment rights? Public sector employees, including teachers and principals, do not lose their constitutional right...

Apparently supervisor-bashing is not the only kind of speech that receives protection.  A recent NLRB decision held that a worker’s racist comments were not grounds for termination.  Cooper Tire & Rubber Co. & United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, Afl-Cio/clc Anthony Runion was a unionized employee who worked for Cooper Tire & Rubber Co, a corporation that manufactures tires.  Runion worked at Cooper’s Findlay, Ohio plant.  Cooper’s Findlay plant employees were locked out after attempts to negotiate a new collective-bargaining agreement were unsuccessful. As a result, the Findlay employees, including Runion, began to picket.  During the lockout, Cooper staffed their Findlay plant with replacement workers from their other facilities, as well as temporary, contracted replacement workers.  Most of these replacement workers were African-Americans.  On January 7, 2012, repla...

Earlier this week, a  Cook County judge upheld the termination of a Chicago Police Officer who posed for a racially offensive picture depicting him and another police officer, who are both Caucasian, holding rifles over an African American man wearing antlers on his head, posed as if he was hunted and bagged by the two officers. The judge upheld the decision of the Police Board to terminate the one officer (the other officer is serving prison time for unrelated offenses) for a variety of employee offenses, including behavior that brings discredit on the department. Almost everyone might comment that the officer deserved to lose his job because his behavior was so egregiously offensive and disrespectful. The surprising part of the story is that the picture was taken over a decade ago, and only surfaced recently.  Since that time, the officer has not engaged in conduct which was ever considered discharge worthy. Most police officers, like this one, are either members of...

What is the time where an employee exhibits the greatest lack of productivity or initiative?  Well, it’s probably true that the single most unproductive day for most employees is the day after the holiday party, but otherwise it is the time period between when an employee gives their notice of resignation and their last day of “work” (if you can even call it that at that point). Most employers have faced this situation. The resigning employee starts burning accrued benefit time, especially sick or PTO time for which they wouldn’t receive pay at separation.  They have an air of “I don’t care” and they spend more time on the phone and on the internet while at work than actually working. What’s worse is that it infects other employees; they’re either irritated with the employee’s behavior or catch the laissez faire attitude themselves. In any event, some employers come to believe that the employee’s presence is not worth the disruption and inconsistency that they bring, so w...

Do you get annoyed when your employees use their smartphones during a meeting? Well, you are not alone. A survey by USC’s Marshall School of Business revealed that:  86 percent of the participants in the survey thought it to be inappropriate to answer a phone call during a formal meeting; 84 percent thought it to be inappropriate to send texts or email during a formal meeting;  75 percent thought it inappropriate to read texts or emails during a formal meeting;  66 percent thought it  inappropriate to write texts or emails during any meeting; 22 percent thought it inappropriate to use phones during any meeting; If smartphone use during a meeting bothers you, you are not alone. So, what can you do about it? Below, I have laid out some suggestions: 1. Set Clear Rules Regarding Smartphone Use Do your employees know that smartphone use during meetings bothers you? If not, tell them. Create a clear smartphone-use policy, and make sure your employe...

It seems that social issues sometimes explode in the workplace almost overnight.  Such is the case with employment issues unique to transgender employees. Maybe it’s the attention that Caitlyn Jenner has brought to the issues of transgender people which has made it more of a “hot topic” lately, but employers are well advised to pay attention to the issue in their workplace. According to the Department of Labor, approximately 700,000 people in the United States are in some phase of transitioning from one gender to another. At some point, many employers will face the needs of a transgender individual in the workplace. While transgender individuals are not specifically covered  by description in either Title VII or the Illinois Human Rights Act. Nevertheless, the rights of transgender individuals in the workplace are rapidly gaining recognition. Recently, the EEOC and several federal agencies concluded that transgender discrimination is prohibited as gender discrimin...

Most collective bargaining agreements require that any discipline be based on just cause.  Just cause has no precise definition but it requires both fairness and a provable justification for discipline and it has come to mean a higher standard than that of an at-will employment which allows for discharge for any reason that is not unlawful.  Many arbitrators employ a six part test to determine whether or not just cause exists to support a discipline decision (some use a four or seven part test, but the factors are essentially the same).  These six factors are:  (1) was there a rule and was the employee aware of that rule; (2) is the rule reasonable; (3) is the rule enforced consistently and equitably; (4) was a thorough investigation completed; (5) was the severity of the discipline reasonably related to the infraction; and (6) was the discipline administered in a timely fashion. Where a contract is silent as to the quantum of proof required to prove just cause ...

The Patient Protection and Affordable Care Act (ACA) contains a requirement that insurers that supply ACA-compliant products through Marketplace exchanges and that are planning to increase health insurance plan premiums by ten percent or more must submit their proposed rates to the state or federal government for review.  As part of the submission, rate increase justifications must be made accessible to the public. Rate review information can be found at https://ratereview.healthcare.gov.   In April and May of this year, insurers supplying ACA-compliant health insurance products to Illinois consumers through the Illinois federal/state marketplace posted substantially higher proposed rate increases for 2016.  Depending on the plan, Blue Cross/Blue Shield is proposing increases ranging from 12.83% (BlueChoice Preferred--Small Group) to 38.24% (BlueChoice Preferred—Individual).  Humana Health Plan’s proposed increase for 2016 is 19.09% for its HumanaOne 2014 HMOx—I...

In an eight to one decision, the United States Supreme Court reversed a Court of Appeals decision and reinstated a $20,000.00 jury award against Abercombrie and Fitch for religious discrimination. Abercombrie and Fitch had refused to hire Samantha Elauf, a seventeen year old Muslim woman who wore the traditional hijab or head scarf. Abercombrie and Fitch said her appearance clashed with its corporate dress code.  In announcing the Court’s decision from the bench, Justin Antonin Scalia said, “This is really easy.” He said Abercombrie and Fitch at least suspected the Ms. Elauf wore the head scarf for religious reasons. The decision not to hire Ms. Elauf was motivated by a desire to avoid accommodating her religion (a requirement under federal law). It was not a defense that Ms. Elauf never explicitly stated that she wore the hijab for religious reasons, nor a defense that she did not ask for a religious accommodation. Title VII prohibits religious discrimination whether the empl...

Recent events around the nation involving allegations of excessive force by police with tragic results, has led to a call for officers to wear body cameras.  Illinois responded with SB 1304, which was passed last week by the Illinois General Assembly and includes several provisions concerning how law enforcement interacts with the public.  This Bill has gone to the Governor for his consideration. The Bill includes the Law Enforcement Officer-Worn Body Camera Act.  This Act sets forth state-wide requirements for the use of body cameras by police.  Among other things the Act details when the cameras must be activated, how long recordings must be preserved and how recordings may be used.  The Act specifically addresses when body camera evidence may be used to discipline a police officer.  The Act states that body camera recordings shall not be used to discipline law enforcement officers unless: A formal or informal complaint of misconduct has been made; ...

It seems to be open season on supervisors. Recently the NLRB is has issued one decision after another finding that employees’ vulgar postings about their supervisors is protected speech.  Take the case of Pier Sixty LLC v. Perez and Gonzalez .   Perez was an employee of the catering company, Pier Sixty.  Employees had long complained that supervisors and management were disrespectful towards employees, with this being one of the reasons that employees petitioned for union representation.  Two days before the union election, Perez was working a catering event. His supervisor, Robert McSweeney approached him and other employees during the event with direction to “stop chitchatting and face the guests” and “spread out, spread out”. While the case references testimony that McSweeney spoke in a harsh tone at that event, it is devoid of evidence that he was cursing that night. Perez, upset by the supervisor’s tone, and undoubtedly fueled by past circumstances and ...