The Workplace Report with Ancel Glink

We all know that most people are addicted to their personal devices or smart phones. Look around in any restaurant and you will sometimes see everyone at a table not talking with each other, but looking at their phones. So when an employer issues smart phones, tablets or other personal devices to its employees, or allows or encourages access to the organization’s email system from the employee’s personal device, it’s not hard to imagine that those employees will be checking and sometimes responding to messages. From that point, it’s a small leap to where employees are making wage claims for the time that they spent accessing and responding to messages while off duty.  This very scenario is currently unfolding in a federal courtroom in Chicago. The plaintiffs are about 50 current and former Chicago Police Officers and the Defendants are the Chicago Police Department and the City of Chicago. At issue is the officers’ claim that in 2010 the Department issued BlackBerrys (remember...

By a 3-2 vote in a case involving Browning-Ferris Industries of California, the National Labor Relations Board voted yesterday to “revisit and revise” the standard for determining whether two affiliated but legally separate entities are “joint employers” for purposes of collective bargaining.  This ruling directly affects parent corporations and subsidiaries, as well as franchisors and franchisees, among other business relationships.  In determining whether two entities are joint employers, the question, the Board said, is “whether the putative joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining”.  While this articulation of the standard is not new, its implementation by the Browning-Ferris majority is a significant departure from the previous standard.  “We will no longer require”, the Board said, “that a joint employer not only possess the authority to control terms an...

No doubt the Virginia television station where a disgruntled former employee killed two co-workers during a live broadcast and injured another yesterday, wishes that it had kept that former employee off the premises after his termination. Maybe that would have prevented the tragedy. That’s easy to say now; hindsight being what it is.  Although nothing can alleviate the sorrow and loss for the families, friends and co-workers of those victims, employers can take measures in their own workplaces to help ensure that these types of tragedies don’t occur.  First of all, it’s not easy for most employers to genuinely believe that any of their employees could one day resort to murder in their workplace. Some managers and supervisors even shy away or delay addressing the issue of workplace violence because it seems so remote and making it a top priority seems so dramatic, especially when other business is pressing. Although workplace violence of the magnitude seen yesterday at tha...

Let’s say you have an employee with Multiple Chemical Sensitivity who becomes ill when exposed to fragrances and other odors in the workplace. You have tried what seems like everything to accommodate her condition. You have moved her work location; shampooed the carpet around her work station; bought her an air purifier; issued a no fragrance policy on several occasions and promised discipline to violators. You have even bought the employee face masks. She still complains that the workplace makes her sick and she has absences well beyond her benefit days, which she attributes to flare-ups of her condition. You have run out of ideas. Can you conclude that no reasonable accommodation exists and the employee must be terminated because she cannot report to work regularly? That’s exactly what the employer did in the case of Brady v. United Refrigeration, Inc. The employee sued claiming, among other things, that the company failed to provide her with a reasonable accommodation. The empl...

One of the prominent themes of President Obama’s 2012 re-election campaign was narrowing the so-called gender pay gap, in which he claimed women make $.77 for every dollar that men make. The President has attempted to follow through on this campaign pledge by instructing federal agencies to crack-down on pay discrimination. For example, companies with large pay disparities between men and women, or between racial groups, have had a more difficulty obtaining federal contracts .  However, employers who want to narrow the pay gaps in their workplace, either between men and women or between ethnic groups, have to be careful how they do so. In a number of cases, courts have held that raising the salaries of all employees of a particular gender or racial group may be illegal.  In one case , a university implemented a pay raise for all of its female professors. The male professors, however, did not receive raises. The male professors sued the university, arguing that it dis...

Even if your employee is not Josh Duggar, it can be disconcerting to say the least to find one of your employee’s names on the subscriber list for Ashley Madison (a website which advertises “life is short, have an affair”). It’s a real dilemma when the employee used his or her computer at work to browse or communicate on the site.  It is estimated by some that thousands of those whose names appear on “the list” conducted their Ashley Madison activities while at work.  Sure, they probably thought that by doing the dirty deed at work that they were keeping their activities secret from their spouse. They just didn’t think about their employer, or the entire world,  finding out. The question is really what, if anything, should an employer do about this situation. First of all, employers should remember that, although this is a very embarrassing situation, on one level this is just another example of an employee using  their work computer for personal business. T...

Getting a charge from the U.S. Equal Employment Opportunity Commission (EEOC) is not the way most employers or HR professionals want to start the day.  The number of disability discrimination and retaliation charges has been on the rise, and charges based on age, gender, and national origin discrimination have also increased.  No matter what the allegation is, every employer should respond promptly, thoroughly, and effectively to an EEOC charge of discrimination.  Some practical tips for Employers are as follows: I. Do Not Ignore The Charge Upon receipt of an EEOC charge of discrimination, you need to review it and develop a response plan usually with the advice of legal counsel. You cannot simply ignore it and hope it goes away. II. Preserve Relevant Documents You need to identify all potentially relevant documents related to the charge and make sure that they are properly preserved. You very well may need these documents to support your defense, as ...

Is it ever okay for an employer to discharge an unmarried, pregnant employee for being unmarried and pregnant?   As dramatic as that might sound, that’s exactly what happened in Eugene, Oregon at Northwest Christian University.  Coty Richardson, a former associate professor at the University, was let go after she refused to conform to a lifestyle that was consistent with the University’s missions and goals. The University gave her an ultimatum; if Richardson continued to cohabitate outside of marriage then she would lose her job.  Richardson sued the University for wrongful termination; she seeks $650,000 in damages and reemployment.  Richardson’s alleges that she was terminated because she was pregnant and claims further that there was nothing in her contract with the University that stated she must be married if she became pregnant.  The University takes the position that pregnancy is not the issue; rather Richardson’s publicly known lifestyle choices is what...

The National Labor Relations Board on Monday unanimously declined to exercise jurisdiction over the petition filed by Northwestern University grant-in-aid football players seeking representation by the College Athletes Players Association for the purpose of collective bargaining.  The Regional Director for Region 13 (Chicago) previously had found that the football players were statutory employees under the NLRA, thus warranting the direction of a representation election.  On appeal of the Regional Director’s decision, the Board did not rule that the football players were not employees.  Instead, it simply declined to exercise jurisdiction.  There were two primary bases for the decision, one of which was that the overwhelming majority of competitors in FBS Division 1 football are public colleges and universities over which the Board has no jurisdiction. Public employers are not under the jurisdiction of the NLRB, rather they would be subject to particular state publi...

A number of pizza delivery drivers have recently begun delivering something new: lawsuits. Unlike pizzas, these lawsuits will likely leave their recipients with a bad taste in their mouth.  The lawsuits were delivered to Papa John’s and Domino’s franchise owners in Georgia, and accuse them of violating the Fair Labor Standards Act’s “kickback rule.” This rule requires employers to make sure that their employees do not earn less than minimum wage once their out-of-pocket expenses have been subtracted from their wages. So, if an employer pays a delivery driver minimum wage, but the driver spends $10 on gas, the employer must reimburse the driver $10 so his total wages do not fall below what he should make under the minimum wage.  This rule applies to virtually all workers paid hourly wages. The purpose of the rule is to make sure that employees receive the full amount of wages owed to them. If delivery drivers paid minimum wage have to spend their own money in order t...

Some may remember the “Just Say No to Drugs” campaign of Nancy Reagan’s in the mid-80’s but, is just saying no at the bargaining table an  unfair labor practice?  Collective bargaining is all about trading and persuading. Part of achieving success in bargaining is to either understand why a proposal is so important to the other side and then using that to leverage something your side wants, or by getting the other side to explain why a proposal is so important, you can easily debunk their reasoning and use that as a basis for rejecting the proposal.  A favorite question of both management and labor when receiving a contract proposal is “Has this been a problem in the past?’ or “What is the basis for you rejecting this proposal?” The answers can be helpful in drilling down to what is important to the other side. So, when either side responds to a contract proposal with simply “No”, it tends to frustrate the other side because it provides no insight and feels like the ...

A recent case decided by the Seventh Circuit Court of Appeals underscores why it is important for employers and human resource professionals to understand and follow the requirements of the Americans with Disabilities Act (ADA).   In Swanson v. Village of Flossmoor , the plaintiff/employee, Mark Swanson, resigned from the Village of Flossmoor’s police department after suffering two strokes, six weeks apart, the second of which left him unable to perform his duties as a police detective.  Swanson filed a lawsuit in federal court alleging violations of the ADA. Specifically, the plaintiff/employee alleged that the Village violated the ADA’s reasonable accommodation requirement by not permitting him to work exclusively at a desk position when he returned to work from his first stroke.  The court rejected this argument finding that the plaintiff/employee’s request for "light duty"/desk position did not match his physician's suggestion of "part-time" work, a...

Section 49801 of the Internal Revenue Code was added to the Code by the Patient Protection and Affordable Care Act, otherwise known as “the ACA” or “Obamacare”.  Section 49801 provides that if the aggregate cost of “applicable employer-sponsored [health care] coverage” exceeds a specified dollar limit, the excess is subject to a 40% excess tax.  That tax, which goes into effect for taxable years after December 31, 2017, is commonly known as the “Cadillac Tax”.  Recently, in Notice 2015-16, the IRS provided some indication as how the Cadillac Tax will be administered. The annual per-employee dollar limits for the 2018 administration of the Cadillac tax are $10,200 for employee-only coverage and $27,500 per employee for “other-than-self-only coverage”.  Thus, the law makes no distinction between “family coverage” or “dependents’ coverage” and “employee plus-one” coverage.  Any health care coverage that covers more than the employee only is subject to the high...

The Seventh Circuit Court of Appeals had another opportunity to consider a claim brought under the Americans with Disabilities Act.  This time, the court awarded only a partial victory to the employer and allowed one of the plaintiff’s ADA claims to proceed to trial in federal court. In Silk v. Board of Trustees, Moraine Valley Community College , the Seventh Circuit recently ruled that the lower court did not err in granting defendant-College's motion for summary judgment in plaintiff-adjunct professor's Americans with Disabilities Act action alleging that his teaching assignments were given to others on account of his perceived heart condition.  The court found that although plaintiff was forced to take leave of absence that was related to his heart condition in spring of 2010, the reassignment of his summer school courses did not violate the ADA because:  (1) plaintiff never advised his employer of possible return date following his leave of absence; and (2) e...

Public companies must now disclose how much more their CEOs make than the average employee. In a rule issued last week, the Securities and Exchange Commission (SEC) required many public companies to disclose the ratio of CEO pay to that of their median employee.   The Dodd-Frank Act, passed in 2010 as a means of reforming the financial system in the wake of the 2008 crisis, required the SEC to promulgate this rule. After a long public comment period, the SEC finally passed this rule last Wednesday. The rule requires most public companies with annual revenue over $1 billion to publish in their annual financial statements “the ratio of the annual total compensation of the chief executive officer to the median of the annual total compensation of the company’s employees.” The rule will not take effect until 2017, with the 2018 financial statements likely being the first year that these ratios are disclosed. The rule, however, does not put any restrictions on the amount that a ...

As Martha Stewart so famously showed us, it’s often not the actual wrongdoing that’s such a problem, as is lying about it.  Last week, the 7th Circuit Court of Appeals confirmed that proposition again recently when it upheld summary judgment in favor of a Union Pacific Railroad Company in an age and race discrimination claim. The plaintiff in the case, Sweatt, had worked for the company for a number of years as a laborer until an injury prevented him from continuing in his job. Taking advantage of the company’s vocational rehabilitation program,  the plaintiff identified a security officer position for which he applied. According to the company, security officer positions required a higher level of personal integrity, and therefore, the application for these positions asked whether the applicant had been arrested or convicted of any crimes, including traffic citations. The application stated that answering yes to the question did not automatically disqualify the applicant...

Netflix just announced it is providing unlimited paid leave for its employees during the first year following the birth or adoption of a child. Leave can be taken by moms and dads. A Netflix announcement follows other companies who are offering expanded paid leave benefits. Twitter provides twenty weeks of paid leave for birth moms and other new parents receive ten weeks. Microsoft announced a new policy providing twelve weeks of paid leave for moms and dads, birth moms get an additional eight weeks of paid leave. Facebook provides its employees twelve weeks of paid parental leave. Google provides eighteen weeks of paid leave for birth moms, primary caregivers also receive twelve weeks of paid leave. In January of this year President Obama issued an executive order requiring six weeks of paid family leave for federal employees after the birth, adoption or foster placement of a new child. President Obama currently has under consideration a draft executive order requiring any co...

We have blogged on a number of the following cases but it is sometimes helpful to have a single article that briefly summarizes recent U.S. Supreme Court employment cases.  This article provides that single source. EEOC v. Abercrombie & Fitch 575 U.S. ___ (2015) was a case alleging religious discrimination under Title VII.  In this case the employer had a “Look Policy” that prohibited caps and head wear.  The Plaintiff, a Muslim, applied for a position with the company.  She wore a headscarf during the interview.  At no time did she request an accommodation based on her religion and at no time did the employer ask about the headscarf.  Plaintiff was denied employment based on the headscarf violating the Look Policy.  The court said the employer may be liable for religious discrimination for failure to accommodate a religious practice where the need to accommodate is a “motivating” factor in the employment decision.  An unsubstantiated su...

A lot can happen in three months in the workplace. Just because an employee who may be affected by a reorganization or reduction in force is on a FMLA  leave doesn’t necessarily mean that the employer’s hands are tied.  A Tennessee district court recently reiterated that an employer can eliminate the position of an employee on FMLA leave for legitimate reasons.  The plaintiff in the case, Ms. Stewart, was an executive assistant for DaVita Healthcare Partners. While on an FMLA leave she learned that the person for whom she worked in the organization resigned. To make matters worse, the company decided that it would take the opportunity to reorganize the department in furtherance of its financial restructuring initiative.  When the plaintiff’s FMLA leave expired she returned to work but was notified that her position was being eliminated. She was told that she could “hang out” and more or less float through the end of the month during which time she could ...

2015 will almost certainly be remembered as a watershed year for the transgendered. While Caitlyn Jenner has been the dominant story, transgender individuals have gained increasing acceptance and recognition in society at large.  2015 may also be remembered as the year that the federal government began taking significant steps to protect transgender individuals in the workplace. As we have reported , the government recently released guidelines for employer restroom policies regarding transgender workers. Additionally, a recent ruling by the Equal Employment Opportunity Commission (EEOC) held discrimination against transgender employees to be a violation of the Civil Rights Act of 1964, a position the agency recently reaffirmed .  Therefore, it should probably come as no surprise that the EEOC recently filed a lawsuit against a company in Minnesota for allegedly discriminating against a transgendered employee. The lawsuit alleged that the employer discriminated aga...