The Workplace Report with Ancel Glink

Life on the road can be tough. Just ask Robert Hurtt. After working for a few months as a travelling salesman, Hurtt was diagnosed with anxiety and depression. He asked his boss for time off pursuant to the Family and Medical Leave Act (FMLA), and then to work a reduced scheduled after he returned so he could manage his anxiety and depression. In response, Hurtt’s employer took away his draw, which is a loan an employer gives to an employee who earns commissions, and stopped paying Hurtt’s travelling expenses. As a result, Hurtt quit.  He did not do so quietly, however, filing a lawsuit against his former employer. Hurtt alleged that his employer violated the Americans with Disabilities Act (ADA) by discriminating against him because of his medical condition and refusing to give him a reasonable accommodation. He also alleged that his employer violated the FMLA by refusing to allow him to take time off from work to attend to his medical condition.  The ADA forbids ...

Yesterday, in Village of Vernon Hills v. Heelan , 2015 IL 1181170, the Illinois Supreme Court revisited the Court’s definition of “Catastrophic Injury” as used in Section 10(a) of the Public Safety Employee Benefits Safety Act (“PSEBA”). The purpose of PSEBA is to provide employer-sponsored health insurance coverage for public safety employees (police and firefighters) and the families of public safety officers who are either killed or “catastrophically injured” in the line of duty.    The PSEBA statute does not contain a definition of “catastrophic injury” so the courts have defined its meaning. In Krohe v. City of Bloomington , 204 Ill. 2d 392 (2003), the Illinois Supreme Court previously held that a catastrophic injury is synonymous with an injury resulting in a line-of-duty disability pension.   The Village argued that Krohe did not hold that receipt of a line-of-duty disability pension “automatically entitled” an injured party to PSEBA benefits or that the ...

We’re doing a round up of the top five employment issues currently facing employers. Yesterday we addressed three of them. Here are our last two issues. Social media and discipline The National Labor Relations Board has been busy over the last few years trying to address rights of concerted activity in employee communications on social media and other electronic communications. It’s pretty clear at this point that employers cannot discipline employees who share workplace complaints with each other – even if that includes crude or vulgar remarks about supervisors. What is still not protected is harassing or threatening commentary or communications designed to sabotage the employer’s business. Similarly, courts continue to find that public employees do not enjoy free speech protection in their comments, even those made off duty, if they do not address public concerns and create undue disruption of the employer’s operation. Again, the key for employers is to establish strong ...

We’re doing a round up of the top five issues currently facing employers. Here’s the first three: Classification Issue The Department of Labor continues to come down hard on employers who misclassify an employee as an independent contractor. Earlier this year, it issued a new Guidance on the subject which announced a change in the way that the agency will view these relationships going forward. The DOL espoused an economic realties test to determine employment status which includes the following factors: 1) The extent to which the work performed is an integral part of the employer’s business.  2) Whether the worker’s managerial skills affect his or her opportunity for profit and loss.  3) The relative investments in facilities and equipment by the worker and the employer.  4) The worker’s skill and initiative 5) The permanency of the worker’s relationship with the employer 6) The nature and degree of control by the employer  Previ...

The Borgata Casino in Atlantic City, New Jersey describes its cocktail waitresses as “part fashion model, part beverage server, part charming host and hostess.” These “Borgata Babes,” as the casino calls them, are required to “be physically fit, with their weight proportionate to height, and display a clean, healthy smile.” In order to maintain these standards, the casino forbade the Borgata Babes from increasing their weight by more than 7% from the time they were hired. This rule applied to both female and male servers.   A group of 21 waitresses  sued the casino , arguing that this rule violated Title VII of the Civil Rights Act of 1964 and a New Jersey law prohibiting discrimination. The waitresses argued that the rule illegally discriminated against women, as 25 women had been suspended for violating it, and one fired, while no men had been suspended or fired.  The court, however, dismissed these allegations, holding that just because women were found in vio...

Let’s say that you have an employee who injured himself on the job.  He’s been out of work for four and a half months. He was found eligible for worker’s comp. The first thing you did was place him on FMLA (yes, an employee can be placed on FMLA for an absence due to a work related injury). When that 12 weeks was exhausted, he chose to start using his accumulated benefit time (of which he has a substantial amount). Another six or seven weeks went by and you receive a note from his doctor that he can return with certain restrictions for an unspecified period of time which prevent him from performing all of the essential functions of his job. Now what? The first thing to do is to remember that even though everyone’s patience has run thin by this point, it’s not time to conclude that you’ve done all that you can for this employee and the only thing left is to sever the relationship. In fact, this is the time that it’s more important than ever to ensure that proper procedures are ...

The Seventh Circuit Court of Appeals recently ruled in favor of the employer in an employment discrimination case alleging disability and race discrimination in violation of the federal laws. In Preddie v. Bartholomew Cons. School Corp ., the Court of Appeals ruled that the lower court did not err in granting defendant-employer's motion for summary judgment in ADA and Title VII action alleging that defendant terminated plaintiff from his teaching position on account of his disability and race. The Seventh Circuit allowed the plaintiff’s FMLA claim to proceed to trial.  Plaintiff, Terrence Preddie is African-American and  worked as a fifth-grade teacher at Columbus Signature Academy which is  part of the Bartholomew Consolidated School Corporation. (“BCSC”). During the 2010-11 school year, after Mr. Preddie was absent 23 times, the BCSC did not renew his contract. Preddie is diabetic and his son suffers from sickle cell anemia.  Following the non-renewal of h...

An Atlanta district court found that an employer violated the Genetic Information Nondiscrimination Act (GINA), as well as an EEOC regulation, when it requested DNA from its employees.  According to GINA, but for certain exceptions, “[i]t shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee”  42 U.S.C. § 2000ff–1(b). An Atlanta-based employer, Atlas Logistics Group Retail Services (Atlas), manages warehouses used for the storage of grocery products, which are eventually sold at a variety of grocery stores.  When an anonymous Atlas employee (or employees) decided to repeatedly defecate in one of the employer’s warehouses, Atlas wanted to figure out the identity of this “devious defecator.”  In order to do just that, Atlas first asked its Loss Prevention Manager to conduct an investigation, which resulted in a list of employees whose work schedul...

Last week we wrote about a teacher whose discharge was upheld because of her critical statements about students in her personal blog.  In that case, the court held that her personal and often derisive opinions about students and some staff were not protected free speech because on balance they were not about issues of public concern and they caused significant disruption in the school district where she worked.   On a gut level that makes sense. Now the 8th Circuit has gone even further and found that an email addressed to a local reporter drafted by a firefighter shortly after he was disciplined which was critical of his fire chief was not protected speech. The facts are interesting. The email was retrieved by the firefighter’s employer, a Fire Protection District, from the firefighter’s Gmail account. The email, although addressed to a  local reporter was never sent to her. A copy of the email was forwarded to the Fire Chief who had suspended him and also circulate...

When you were young, your parents may have told you to avoid discussing religion and politics with people you don’t know. Apparently officials in Williamson County, Texas forgot this sound advice. As a result, they are facing a lawsuit .  The problems for the county officials started during a job interview for a county constable position. During the interview, the officials asked the applicant about his views on abortion. He replied by stating that based on his Catholic faith, he was pro-life. He claimed that in response to this answer, the county officials “frowned and exchanged disapproving glances.”  The officials also asked him about his views on same-sex marriage, to which he replied that marriage should be between one man and one woman. He claimed that a county official responded by stating that “if he was appointed to the position, he would need to come up with a better answer.”  The officials then asked him what church he attended, whether he was a Re...

Recently, the 7th Circuit again confirmed that an employer is not obligated to grant the ADA accommodation that the employee requests.  In Swanson v. Village of Flossmoor , the plaintiff was a police officer who suffered a stroke, unrelated to his work. After an approximate six week recovery, his doctor released him to return to work with a note that said “part-time work suggested until patient seen by Neurologist on 9–18–09.” The plaintiff claims that he requested a light duty assignment, which in his definition was “desk duty”. Instead, the Village allowed him to work three days a week and utilize his accrued benefit tome for the other days.  Unfortunately, plaintiff suffered further medical complications and ultimately was unable to return to work, eventually applying for and receiving a non-duty disability. He also filed a claim against the Village alleging that it had violated his rights under the ADA by refusing his request for light duty. He based his claim, in...

Over the years, the 12 hour shift in police departments has grown in popularity. For officers, working a twelve hour shift translates into an increase in days off throughout the year. For the department, staffing two instead of three shifts a day often results in reduced overtime costs. It’s always made sense that dispatchers should work the same schedule. The only problem is that a 12 hour shift schedule results in employees working under 40 hours in some weeks and over 40 hours in other weeks. Unlike the specific partial exemption under the Fair Labor Standards Act that applies to police and firefighters, dispatchers and other public employees who do not meet the definition for that partial exemption are entitled to time and one-half pay for hours worked over 40 in a week, regardless of whether the employee’s hours were under 40 the week before. Public safety departments were forced to either keep the dispatchers on a different, eight-hour schedule, than sworn employees, or pay ov...

We all know that teachers can get a little cynical about their students from time to time. It’s a hard job, even in the best of districts. But, can a teacher talk trash about their students, job and school on the internet and then claim that the comments are protected speech?  That’s what happened with Natalie Munroe and Central Bucks School District in Pennsylvania, where she worked.  Shortly after Munroe achieved tenure, she created a blog, entitled Where are we going, and why are we in this handbasket? on which she posted all kinds of personal musings and information, like recipes, updates on her children and film preferences. She wrote under the name Natalie M. and between August 2009 and November 2010 she wrote about 84 posts, most of which, according to her, had nothing to do with the school or her students.  The blog posts that she wrote about her students and the school were sometimes doozies For example: Munroe complained about the rudeness and lack...

On July 31, Governor Rauner vetoed Senate Bill 1229, which would have enabled unions in collective bargaining negotiations with the State of Illinois to take to interest arbitration disputes regarding collective bargaining agreements expiring between June 30, 2015 and  June 30, 2019.  The Illinois Senate voted to override the veto but, on September 2, the override vote in the House of Representatives failed, thus allowing the Governor’s veto to stand. In his veto message, Governor Rauner asserted that the bill “removes every subject of labor negotiations from the bargaining process and allows unelected arbitrators to impose billions of dollars of new costs on our taxpayers without any involvement of the Executive Branch, the General Assembly, or those taxpayers.  This legislation is undemocratic, it is bad for our budget, and it is unconstitutional.” Interest arbitration has been available at the local level in Illinois since 1986 to units of public safety employ...

When most people hear the word “audit,” they do one of two things (sometimes both):  1) they head for the nearest bar or liquor cabinet; and/or 2) they run quickly through their entire repertoire of profanity. Either of these options is understandable given the typical understanding of an “audit,” which normally includes a guy with no personality in a short sleeve dress shirt with a clip on tie asking condescending questions about why you deducted your dog’s teeth cleaning as a medical expense (it isn’t?).  If you wear short sleeve dress shirts with a tie, I apologize…truthfully, I don’t .  That’s a bad look. Anyway, GOOD NEWS!  This is not that kind of audit.  We’re talking about a good audit.  Before you stop reading and write me off as just another kook with a blog, give me one more minute of your time.  The audit of which I speak is an employment practices audit.  Now, I know that sounds boring, albeit less frightening than the other ki...

Well-handled investigations put employers in the best position to successfully defend  an EEOC charge of discrimination filed by a current or former employee.  Before the employer can respond to a specific charge, it must determine exactly what happened.  Having an experienced employment law attorney conduct or supervise an internal investigation, can be very helpful.  The attorney can ensure that relevant facts are gathered, appropriate documents are reviewed and proper recommendations are made. If an attorney conducts the investigation, be sure to discuss which materials and discussions may be treated as confidential or privileged.  An early and thorough evaluation is important to determine potential liability exposure and help avoid surprises if the matter goes to litigation.  This also gives the employer an opportunity to consider the value of early mediation. The investigation should entail thorough interviews with all relevant witnesses, incl...

Does your website have closed-captioning? If not, you may be violating the Americans with Disabilities Act (ADA).  The ADA requires places of “public accommodation” to make their services accessible to people with disabilities. Places of public accommodation include areas open to the public, like hotels, restaurants, movie theaters, schools, daycare facilities, etc. Under Title III of the ADA, owners of public places must make these places accessible to people with disabilities, unless doing so would be too costly or difficult.  This also means that websites of places of public accommodation must be accessible to people with disabilities, according to the Department of Justice (DOJ). Although the DOJ has not yet passed a regulation to this effect, it recently voiced its support of two lawsuits brought against Harvard and MIT by the National Association of the Deaf. These lawsuits allege that both of these universities violated the ADA by not including videos with cl...