The Workplace Report with Ancel Glink

Are Your Exempt Employees Still Exempt? Let the Labor and Employment Attorneys from Ancel Glink Get You Ready for the New Rules that Govern Overtime Eligibility When:  August 4, 2015 8:30 a.m to 10:00 a.m. Where:   Heartland Community College, 1500 West Raab Road, Normal, IL 61761 Who:  All local governmental officials, managers, administrators or directors What: The FLSA regulations defining exempt status are undergoing drastic changes. The Department of Labor anticipates that the new regulations will result in the reclassification of most currently exempt employees to non-exempt status. In our no-cost "breakfast briefing," the labor and employment attorneys from Ancel Glink, a premiere Illinois local government law firm, will explain the new regulations and how to apply them to your employees so that you stay in compliance with state and federal wage laws. We will discuss topics such as: What is the new salary test for exempt status? What do I do...

Let’s say that you have an employee who is claiming that he is having a stress related disorder. He says that his supervisor is making matters worse and that his condition is making it difficult for him to come to work.  His absences have increased lately and, suspiciously, they most often occur on Fridays. What should an employer do? The employer has to analyze its possible obligations to the employee on a few levels. Is he entitled to coverage under the ADA? Are his absences eligible for FMLA protection? Maybe both? Where do you start? Firstly, the employer needs to get rid of any preconceived notions about the employee and the situation. It is often only after performance or attendance changes occur that employees reveal their issues, which means that often the employer is already irritated and sees the medical condition as a made up or exaggerated excuse for poor performance.  It’s important for the employer to analyze the issues as objectively as possible, keepin...

Lopez v City of Lawrence is a case arising out of the United States District Court in Massachusetts. Plaintiffs, candidates for police Sergeant in a number of Massachusetts cities, including Boston, alleged that the Sergeant promotional examination had an adverse impact on the Plaintiffs.  The Plaintiffs were self described as African American or Hispanic. All of the promotional examinations were administered by the Human Resources Division, an agency of the Commonwealth of Massachusetts.  The examinations were given over a period of years from 2005 through 2008.  The promotional test consisted of 80 multiple choice written questions and 20 points based on Experience and Education.  A passing score of 70 was required to be placed on the promotional list.  Candidates were listed in order of scores with bonus points for Veterans and long service employees.  The Plaintiffs sought to aggregate data from multiple municipalities and from multiple testing ye...

Last Friday, a Cook County Circuit Court judge dealt a major blow to the State’s pension reform efforts. Judge Rita M. Novak declared recent pension reform legislation unconstitutional, likely putting the final nail in the coffin of the State’s most recent efforts to solve its pension crisis. This decision comes on the heels of a major ruling by the Illinois Supreme Court invalidating another piece of pension reform legislation. As a result of these rulings, many pension funds now find themselves on the brink of insolvency, with some projected to go broke within a decade.  In the case decided Friday, captioned Jones, et al. v. the City of Chicago, et al., the court considered the constitutionality of Public Act 98-641. That legislation amended the way that two pension funds were financed. The funds, the Municipal Employees Annuity and Benefit Fund and the Laborers Annuity and Benefit Fund of Chicago, provide pensions to employees of the City of Chicago. Currently, those funds...

You meet and the relationship seems promising.  Things are great for a while. It seems like the “real deal”. As time passes, you might discover a few flaws but you talk about them and you think everything can still work out. But then the minor problems continue, or worse yet, something major goes wrong where the other party seriously disappoints and you are suddenly faced with the question of “do I believe that this relationship can still work or should I just end it now?” This could describe either a romantic or employment relationship. And the way that you handle a serious breakdown of expectations can be amazingly similar whether you are a party in a romantic relationship or whether you are an employer. Depending on the circumstances, you might decide to give them one more chance. In an employment situation, the one more chance is called a last chance agreement.  Last chance agreements generally set forth certain employment requirements which must be performed by t...

Employer liability for workplace harassment can be established in the following ways: Employers can be subject to automatic liability for sexual harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. This is known as quid pro quo harassment. Thus, supervisors must be trained on and follow the workplace anti-harassment policy and conduct expectations. If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, it is imperative that employers have an anti-harassment policy in place and a clearly communicated complaint procedure to lay the foundation for this defense. Employers can also be liable for sexual harass...

Until recently, most federal courts that had considered the proposition had ruled that Title VII of the Civil Rights Act of 1964 “does not prohibit … discrimination because of sexual orientation.” Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (quoting Simonton v. Runyon , 232 F.3d 33, 35 (2d Cir. 2000). The courts’ view was that “Congress had only the traditional notions of ‘sex’ in mind” when it enacted Title VII and that those “traditional notions” did not include sexual orientation. DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327, 329 (9th Cir. 1979), abrogated by Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 875 (9th Cir. 2001).  Recently, the courts’ views on the subject have been changing. In part, this change in view stems from a revisitation of the import of the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that Title VII protected persons alleging discrimination on...

We often advise clients that if they discover that an employee has been misclassified as exempt, the best course of action is to determine the amount of overtime owed for the previous three years (the statute of limitations period) and pay the employee in exchange for a waiver and release of claims. The reasons for this advice are many. First of all, FLSA and state wage laws are “strict liability” statutes, meaning that it doesn’t matter whether the misclassification, or failure to pay overtime, was a good faith mistake, or even agreed upon by the employee. If the employee was improperly paid, the employer is liable.  Secondly, wage claims are expensive for employers. If successful, an employee can recover not only the wages owed, but liquidated damages (generally twice the wages owed) and their attorney’s fees. That’s why we say, if an employer realizes they made a mistake, paying the back wages before a claim is filed is a much cheaper way to resolve the matter. As usual...

As employers who rely on foreign workers are undoubtedly aware, October 1 marks the date that employees who obtained H-1B visas in April 2015 can begin to work. Companies who were unable to obtain H-1B visas for all of their prospective employees, however, may be scrambling right now to fill open positions. This often leads employers to consider hiring immigrants already here on an H-1B visa working for another employer. Can an employer do this? Yes. An employer may hire a foreign worker here on an H-1B visa working for someone else. Doing so, however, will involve more work than hiring a domestic employee.  An employer wishing to hire a foreign employee already working in the United States on an H-1B visa must file a new H-1B visa petition for that employee. This requires an employer to fill out Form I-129 and file it with the United States Citizenship and Immigration Services (USCIS). In order to complete Form I-129, an employer will need a copy of the employee’s: ...

In the wake of the Espy Awards and the Arthur Ashe Courage Award to Caitlyn Jenner,  last week the EEOC reaffirmed its position that it recognizes LGBT discrimination as sex discrimination under Title VII.   While the publication takes no new position on the subject, the agency stated that with increased focus on the legal issues associated with LGBT status, the publication serves as a reminder of its activities in protecting rights of LGBT individuals.   If charges filed with the EEOC are any indication of the increasing general awareness in society of LGBT issues, then Caitlyn Jenner might just be the icing on the cake. According to EEOC data,in the final three quarters of FY 2013 (January through September), EEOC received 643 charges that included allegations of sex discrimination related to sexual orientation and 147 charges that included allegations of sex discrimination based on gender identity/transgender status. In FY 2014, the EEOC received 918 charges that ...

To prevent sexual harassment lawsuits, employers should be aware of the following facts: FACT No. 1  - It is unlawful to harass a person (a job applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. FACT No. 2  – Harassment does not have to be of a sexual nature. However, it can include offensive remarks about a person’s sex. For example, it is unlawful to harass a woman by making offensive comments about women in general. FACT No. 3 - Both the victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. FACT No. 4  – Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is unlawful when it is so frequent or severe that it creates a hostile or offensive work environment or when it r...

Yesterday, the Department of Labor issued an administrator’s interpretation of the FLSA regulations giving a new spin on the determination of employee vs. independent contractor status.  In issuing the guidance, DOL  Administrator David Weil, reverted back to the FLSA definition of employ as the basis for the guidance. According to Weil, “[t]he FLSA’s definition of “‘employ’ includes to suffer or permit to work.” 29 U.S.C. 203(g). This “suffer or permit” concept has broad applicability and is critical to determining whether a worker is an employee and thus entitled to the Act’s protections. …The “suffer or permit” standard was specifically designed to ensure as broad of a scope of statutory coverage as possible.” The DOL has always endorsed the “economic realities test” to determine independent status. The factors of that test are as follows: 1) The extent to which the work performed is an integral part of the employer’s business.  2) Whether the worker’s...

The DC Circuit Court of Appeals recently inserted some common sense into the issue of protected speech and activity under the NLRB. Southern New England Telephone Company (AT&T Connecticut) had a policy requiring employees who are “publically visible” to dress in a professional manner and prohibiting employees from wearing clothing with printing or logos that are unprofessional or might jeopardize the Company’s reputation.  During a bitter contract negotiation with the Communication Workers, that union distributed tee shirts to its members. On the front of the tee shirt it said “Inmate #” with a black box beneath. On the back of the shirt it said “Prisoner of AT&T”. No mention of the union appeared on the tee shirt.  The company disciplined employees who wore the tee shirt when providing customer in-home services. The union filed an unfair labor practice claiming the company violated the employee’s right to engage in protected concerted activities. The National Labor ...

The United States has one of the largest military reserve forces in the world, with over 850,000 members. A large percentage of these reservists are also employed in the civilian labor force. Individuals serving in the reserves generally have to take time off throughout the year for training, which often requires them to miss work. In times of crisis or national emergency, they may be called into active duty, causing them to miss months or even years of work. Does an employer have to continue to pay these employees while they are away on military leave?  The federal law governing how employers must handle employees on military leave, the Uniformed Services Employment and Re-employment Rights Act (USERRA), does not require an employer to pay an employee on military leave.  The law does, however, forbid an employer from taking negative employment action against an employee for being on military leave. This means that an employee cannot be fired, demoted, or have his pay...

Many pitfalls exist for new supervisors. It’s not about getting the work of the employer done; that’s the easy part. It’s just much more difficult than it seems to supervise employees.  Additionally, it’s always a little bit tougher for an employee to become a supervisor when he or she will supervise the very people with whom they used to be co-workers. Today’s post is for those supervisors who were promoted from the ranks.  Aside from handling the increased responsibilities in ensuring that the work of the employer gets done, new supervisors have to adjust to their role with the people who used to be their co-workers. With the continued rise in employment litigation, new supervisors have to pay at least as much attention to their interaction with their former co-workers as they do to the actual work of the employer, and nothing sours a career like creating liability for your employer through the way you supervise. The following are five common ways that new supervisors c...

On Monday, July 6, 2015, the U.S. Department of Labor issued its long-awaited proposed rules for “defining and delimiting the exemptions for executive, administrative, professional, outside sales, and computer employees” under the federal Fair Labor Standards Act.  Written comments are due by September 4, 2015.  It is expected that final rules will be issued approximately 90 days following the submission of written comments. As a general rule, employees are required to be paid overtime (at one and one-half times the regular rate) for hours worked in excess of 40 in a week.  To qualify for one of the “white collar” exemptions from the overtime requirement, an employee must meet three tests:  (1) the employee must be paid on a “salary basis” – the “salary basis test”; (2) the amount of the salary paid must meet a specified minimum amount – the “salary level test”; and (3) the employee’s primary job duties must qualify him as an executive, administrative, or profes...

It’s anticipated that, within the next ten years, four generations will be in the workplace at the same time. Millennials, or those born between 1980 and 2001, will occupy forty-six percent of the workforce by 2020. With this new generation comes a new perspective.   Millennials’ predecessors, Baby Boomers (born between 1945 and 1964) and Generation X (born between 1964 and 1980), value working independently with a more “inward looking perspective.”  In comparison, the tech-savvy and diverse Millennials are collaborators.  A report from UNC's Kenan-Flagler Business School described the Millennials as “continuous learners, team players, collaborators, diverse, optimistic, achievement-oriented, socially conscious and highly educated.”  That report can be found here. Baby Boomers and Generation X are most concerned with job security and structure, while Millennials are most concerned with self-fulfillment and purpose.  The UNC's Kenan-Flagler Business School a...

During its October 2015 term, the United States Supreme Court will address the issue of whether or not it is constitutional to require bargaining unit members of public employee unions who choose not to join the union to pay “fair share” dues.  If the Court decides that “fair share” dues are unconstitutional, such a decision could be a major blow to public sector unions.  The case before the Court is brought by a group of California teachers who contend that, by compelling them to pay “fair share” dues, the union is violating their rights to free speech. In recent years, labor union membership has been declining in the private sector.  During this same period, public sector unions have grown tremendously.  Data released by the Bureau of Labor Statistics for 2014 indicates that 35.7% of public-sector workers are union members compared to just 6.6% in the private-sector. The dispute in California arises over the fact that a group of public school teachers have...

The California Labor Commission recently ruled that an Uber driver is an employee, and not an independent contractor. Uber is a ridesharing service, which allows a user to order a car using his or her smartphone. The car then takes the user to his or her destination for a fee, similar to a taxi. In order for a driver to be part of Uber’s network, the driver must provide the company with a valid background check from the police, have a newer four-door car, and pass an interview. These are similar to the requirements necessary to be a taxi driver in most places.  Uber drivers have almost always been classified as independent contractors. An independent contractor is hired to perform a particular task, with the person or business hiring the contractor having little control over the way the contractor performs the task. In contrast, an employee is hired to perform a number of different tasks, and is subject to the direction and control of an employer. An employer must pay employe...

From The Municipal Minute, authored by Julie Tappendorf of Ancel Glink. After Kevin Smith became Mayor of Anderson, Indiana, he replaced many members of the City staff with his political supporters or others he deemed trustworthy.  11 of the fired workers filed a civil rights lawsuit against the Mayor and the City of Anderson claiming that the discharges violated the First Amendment. The district court held that the Mayor had qualified immunity with respect to 9 of the 11 claims, and allowed the other two claims to continue. Both the City and Mayor appealed to the 7th Circuit.  The 7th Circuit limited its appeal to determining whether the district court was correct in denying the Mayor qualified immunity with respect to the two remaining plaintiffs.  These two plaintiffs included Allman, the former office manager for the utility department and Baugher, a customer service supervisor in the utility department.   With respect to Allman, the court held that...

Despite so much activity from the Supreme Court in the last week, virtually everyone also has heard that the Department of Labor announced on Monday a proposed rule that increases the threshold salary for exempt employee status. Currently the minimum annual salary for exempt status is $23,660. Under the proposed rule change, that minimum increases to $50,440. The more than double increase is designed, according to the Department, to compensate for inflation since the original salary minimum was established. The new rule also allows   Readers of the Workplace Report know that increasing the minimum threshold for exempt status is just one component of the DOL’s initiative to overhaul white collar exemptions. To meet the test for white collar exemptions test, an employee must meet both the salary test and the duties test. The salary test is the subject of the proposed change reported Monday. In order to be  exempt, though, an employee must also meet the duties test of the ex...

Supervisors and managers often have difficult conversations with employees; they demote them, deliver poor evaluations; notify them of reductions in force; issue discipline and discharge them. All those topics are a walk in the park compared to having to talk to an employee about their body or breath odor. In addition to approaching the issue with some modicum of sensitivity, employers often ask whether they face any liability risks in talking about the issue.   As with many employee issues, it’s mostly in the approach. Some employers have a grooming policy which requires employees to maintain reasonable levels of hygiene and supervisors use that as a starting point for the conversation. When complaints from clients, customers or co-workers form the catalyst for “the talk”, the complaints become the focus. The main thing to remember is to approach the topic like any other workplace issue by simply stating the problem and engaging in a dialogue on the topic. For instance, the e...