The Workplace Report with Ancel Glink

The Seventh Circuit Court of Appeals recently reversed the District Court’s dismissal of a plaintiff’s federal employment discrimination lawsuit. In Huri v. Office of the Chief Judge of the Circuit Court of Cook County , Fozyia Huri sued her employers at the Circuit Court of Cook County, Illinois.  Huri alleged defendants subjected her to a hostile work environment on the basis of her religion (Islam) and national origin (Huri hails from Saudi Arabia) in violation of Title VII of the Civil Rights Act of 1964. Huri further alleged that her supervisors retaliated against her for making internal complaints about the workplace harassment.  Specifically, in 2000, Huri began working as a child care attendant at the Circuit Court of Cook County. She always wore a hijab, an “Islamic head scarf” covering her hair, but not her face. Huri’s supervisor was Sylvia McCullom, a devout (and allegedly vocal) Christian. According to Huri, McCullom was unfriendly from the start, repeatedly ...

Last week we reported on the Illinois company that admitted to firing two employees because they requested that they not be required to deliver alcohol as part of their truck driving jobs as a religious accommodation. The company acknowledged that it could have juggled some drivers’ routes to do this, but said it wasn’t aware that it was obligated to do so. This case is scheduled soon for trial in the Central District Federal Court in Illinois and we’ll see if that story mitigates damages. The 5th Circuit didn’t buy a similar argument by an employer recently in a wage case. In Miles v. HSC-Hopson Services Company , the plaintiff filed a claim for unpaid overtime because the employer failed to count as time worked the time that the plaintiff spent traveling from the employer’s garage or warehouse to work sites at the beginning of the day and the reverse trip at the end of the day. In Miles , the employer claimed that he had relied on an unspecified website containing “e-laws” on wa...

Maybe employees just don’t want to be accused of “faking” sick, or maybe employees don’t want to squander their PTO while they’re actually sick when they want to use it for recreation and relaxation, but the phenomena of employees reporting to work when they’re really and truly ill seems to be growing. A Huffington Post article from a few years ago reported the results of a survey that found nearly 80% of the American workforce has reported to work while they’re still contagious. If dedication is the motive, then it should be commended, but no matter the reason, they shouldn’t always be allowed to stay. The quickly approaching flu and cold season is a good reminder for employers to brush off their policies about reporting to work when ill. Just because an employee reports to work doesn’t mean you have to allow them to stay if they’re ill and likely contagious. In fact OSHA and some state counterparts require employers to provide a workplace free of known hazards, and allow employe...

Live-in nurses, home health aides, and other employees who care for the elderly won a significant victory earlier this month when a court upheld a Department of Labor rule requiring companies to pay these employees minimum wage and overtime. Previously, these workers were not entitled to these benefits.  Under the Fair Labor Standards Act , an employer must pay an employee a minimum wage of at least $7.25 ( some states have increased this amount ) and 1.5 times their hourly wage for working overtime. However, there are a number of exceptions to this law. Managers, administrators, salespeople , and other “white-collar” employees are exempt from these rules, as well as a host of others in various jobs. Employees who provided “companionship services” to the elderly or people with injuries, illnesses, or disabilities were also exempt. Live-in domestic service employees were exempt from receiving overtime pay, but not minimum wage.  The Department of Labor’s rule change...

Last year we reported on the NLRB case of Triple Play Sports Bar and Grille which fired two employees for their Facebook activity. As readers may recall, a former employee of Triple Play posted a comment on Facebook which was derogatory to the company, including a remark that she owed more in state income tax than the company withheld.  One employee “liked” the comment and another employee posted the following response. "I owe too. Such an a**hole."   The NLRB found that the discharge violated the employee’s  Section 7 rights to engage in protected, concerted activity.  The employer appealed, making the argument that the situation was analogous to that of   NLRB v. Starbucks Corp. , 679 F.3d 70, 193 LRRM 2161 (2d Cir. 2012) where Starbucks fired an employee after he engaged in an angry obscenity-laced confrontation with a supervisor inside a store, within earshot of customers. In the Starbucks case, the NLRB found that the employee was not protected in his ...

In a recent federal decision in Woods v. City of Berwyn , the Seventh Circuit Court of Appeals ruled against the plaintiff/firefighter in an employment discrimination case. Plaintiff, John Woods alleged violations of FMLA, ADA and ADEA arising from his termination. According to his employer, Woods told a co-worker at the Berwyn Fire Department that “he wanted to kill somebody, all of them” and that his children were going to “go over there” and “tune them up,” referring to his coworkers and superiors. The Fire Department Chief investigated the matter and eventually recommended termination. Woods denied making these statements. The Board of Fire and Police Commissioners conducted a full hearing on the Fire Chief’s recommendation and voted to terminate Woods based largely on the testimony of a co-worker to whom Woods made the statement.   Woods filed a complaint in federal court asserting discrimination and unlawful retaliation. Specifically, Woods attempted to proceed under a “...

Earlier this week, the 7th Circuit defined for the first time when the statute of limitations begins to run on FMLA claims that are based on an employee’s absenteeism policy which calls for progressive discipline.  In the case of Barrett v. Illinois Department of Corrections , October 20, 2015 the employer had a policy which called for progressive discipline for unauthorized absences which culminated in discharge of the employee after 12 of these unauthorized absences. The plaintiff was hired in 1995 and through her years of employment amassed a number of such unauthorized absences. She claimed at the time that certain absences  in 2003, 2004 and 2005 should have been designated as FMLA leave, but her claims to the employer were denied at those times.  Through the years in question, including the years that the plaintiff claimed that her absences deserved FMLA protection, her employer issued progressive discipline to her. In 2010, the plaintiff reached a total o...

There are three major cases of interest to our clients that will be decided by the U.S. Supreme Court this year during its October term.  One is Friedrichs v. California Teachers Association , previously discussed in The Workplace Report .  In Friedrichs , the Supreme Court will address the question as to whether teachers who are members of a public sector collective bargaining unit may be required to pay fair share fees even though they choose not to belong to the union that represents employees in the bargaining unit.  In ruling on this question, the Court is expected to revisit its 1977 decision in Abood v. Detroit Board of Education , in which the Court upheld the imposition of fair share fees, with certain safeguards that are now being challenged as inadequate to protect public employees’ constitutional right to free association.        The second major case  is Fisher v. University of Texas .  This case also involves a revisiting o...

Last week, the University of Southern California fired its head football coach, Steve Sarkasian, for showing up to practice drunk. This was not the first controversy involving Sarkasian and alcohol. A few weeks prior to his firing, Sarkasian showed up to a USC donor event drunk. During the event, he made a rambling, nonsensical speech where he dropped the F-bomb. Eventually, he was pulled off of the stage.  After Sarkasian’s firing, he checked himself into rehab, and admitted that he had an alcohol problem. Sarkasian said nothing about filing a lawsuit against the school, but if he did, would he have any chance of success? Can an employer fire an employee because the employee is an alcoholic? Probably not. An employer cannot fire an employee solely because that employee is an alcoholic. The Americans with Disabilities Act (ADA) prevents an employer from firing an employee because of that employee’s disability. Alcoholism has been found by some courts to constitute a disabi...

An Illinois federal jury will soon hear a somewhat unusual case, where the defendants have claimed that they were unaware of federal discrimination laws and therefore cannot be found to have acted maliciously or willfully when it fired two Muslim workers who sought a religious accommodation.  In this case of EEOC v. Star Transport, Inc. , the two employees who were drivers for the company, requested that they not be required to transport alcoholic beverages as it violated their Muslim religious tenets. Rather than reassigning routes among some of the more than 1,000 workers for the company to accommodate the requests, Star Transport just fired the two employees. When the employees filed discrimination claims with the EEOC, the company remarkably acknowledged its actions but claimed it was not aware of federal laws that prohibited that action. Its admission that it fired the employees because of their religious beliefs and requests for accommodation makes the company liable...

The NLRB recently issued a decision in Manhattan Beer Distributors, LLC and Joe Garcia Diaz which clarified and confirmed its prior rulings regarding an employee’s rights when a reasonable suspicion drug test is ordered. In Manhattan Beer Distributors , a company representative noted that Diaz “rocked the smell of marijuana” when he reported to work one day.  As a result, Diaz was ordered to immediately report for drug and alcohol testing pursuant to the reasonable suspicion testing provision of the parties’ collective bargaining agreement. The employee, while stating that he had no objection to taking a drug test, also invoked his Weingarten rights, demanding that he consult with a union steward prior to reporting for testing. The employer agreed. The only problem was that no union steward was on duty at the time.  The union steward that was normally on duty with Diaz was off of work that day. Diaz then telephoned the other steward who told him that he was not working and...

Reportedly, Urban Outfitters, the hipster apparel and accessory store, recently emailed its exempt staff requesting that they “volunteer” their time on five or six weekend days  in the next couple of months to pack and ship merchandise for the company. The email supposedly explained that the coming months were the busiest for the company and essentially everyone had to pitch in to keep the customers happy and the work flowing. Urban Outfitters characterized the volunteer time as team building which would enhance the bond between the company and workers. Maybe some would disagree, but I can’t imagine anything that most employees would rather do than give up weekend time to work for their employer for no extra pay. Morale issues aside, it raises the question of whether exempt employees can volunteer their time for their employer to do non-exempt work. The simple answer is that for a short period of time, like Urban Outfitters has requested, they probably can. Although non-exempt...

We have often remarked that the invention of the smartphone has been both a blessing and a curse. While we have the power of the internet at our fingertips at all times, that can make us feel that we have to respond to emails and other messages at all times of the day and night. The pressure to respond to emails and other messages, even off-the-clock can make employees believe that they are always working, and should be paid. We recently reported on the wage claim of a number of Chicago police officers who responded to messages while off duty on their department issued Blackberrys. That case is currently still pending in court. Along the same lines, a group of Comcast technicians recently sued the company, arguing that they should have been paid for working during their lunch hour because they were checking and responding to emails during this time. They argued that Comcast violated the Fair Labor Standards Act , the Illinois Minimum Wage Law , and the Illinois Wage Payment and ...

Last week the 7th Circuit overturned the District Court’s grant of summary judgment in favor of Volvo Parts of America against employee Luzmaria Arroyo who claimed that she was fired because of her military service in violation of USSERA and her disability of post traumatic stress disorder in violation of the ADA.  What is especially noteworthy is that the  Court, in reversing the summary judgment ruling, relied primarily on the emails between employer representatives to find that a trial should occur to determine whether plaintiff’s military service was a basis for her discharge. To borrow from Shakespeare, the employer may be hoisted by its own petard. Here’s what happened: The plaintiff in this case was a member of the military reserves prior to and continuing through her employment with the defendant. As such she was required to attend annual as well as special trainings throughout her employment. She was also deployed to active duty on more than one occasion. In all,...

It’s a fact that employers become frustrated with intermittent FMLA leave of their employees. The often unpredictable absences, coupled with the feeling that the employee is using FMLA leave as a free pass to take off whenever they want to, can drive employers crazy. Imagine then how annoyed you would be, as an employer, to discover that your employee was using FMLA leave to take a cruise! In the case of Fitterer v. State of Washington Employment Security Department , plaintiff submitted a request for intermittent FMLA along with her doctor’s certification that she suffered from migraines. Not too long thereafter, she requested use of a week of vacation followed by a week of unpaid FMLA leave. The employer probably should have been tipped off by the fact that the plaintiff characterized these requests as FMLA vacation.  During her absence, the plaintiff’s father-in-law revealed to plaintiff’s supervisor in casual conversation that the plaintiff and her husband were on a pr...

In a recent decision, the First District Appellate Court upheld a default order and money judgment award against a clothing store in race discrimination case for its failure to file a verified response to IDHR charge of discrimination. In Windsor Clothing Store v. Castro , 2015 IL App (1st) 142999,  Katrina Miles alleged that on September 4, 2007, she visited the Windsor clothing store in Chicago Ridge, Illinois. Miles, who identified herself as black, was followed by a sales associate the entire time she was in the store. No reason was given for this treatment and Miles alleged that non-black customers were not treated in the same manner. On September 10, 2007, Miles filed a discrimination complaint with the Illinois Department of Human Rights (IDHR), against Windsor Clothing Store alleging a denial of the full and equal enjoyment of a public accommodation based on race, in violation of section 5-102(A) of the Illinois Human Rights Act, 775 ILCS 5/5-102(A) .  The...

The U. S. Supreme Court began its new term this last Monday. That’s always accompanied by a great deal of pomp and circumstance and anticipation of change.  In one very key employment case, the 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, Friedrichs v. California Teachers Association , 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 indicat...

Do you badmouth your boss behind his back? If so, then we have some good news for you: you might not lose your job if your boss finds out.   At a shipping company in California , a few package sorters attempted to unionize their fellow employees. Their bosses claimed that they heard these unionizers “badmouthing” them while attempting to convince their fellow employees to join the union.  As a result, one of the unionizers was demoted, and threatened with further discipline if he continued to allegedly badmouth his bosses.  The union filed a complaint, alleging that the employer interfered with the unionizer’s free speech rights under the National Labor Relations Act (NLRA). Under that law, an employee has a right to discuss unionizing with other employees. If the employer prevents or disciplines an employee for discussing unionization, demonstrating his support for unionization, or engaging in any activity that might encourage others to unionize, the employer wi...

Last week, the Illinois General Assembly enacted P.A. 99-0478 amending the Illinois Freedom of Information Act to specifically address severance agreements. Section 2.20 of FOIA previously provided that settlement agreements are public records subject to release under FOIA (except that exempt information within the agreement can be redacted). That section has been amended to treat severance agreements the same as settlement agreements.  The Act also modified the definitions section of FOIA to include a definition of severance agreements as follows: "a mutual agreement between any public body and its employee for the employee's resignation in exchange for payment by the public body." The law does not take effect until June 1, 2016. However, based on recent decisions by the PAC office, the PAC may already be interpreting "settlement agreement" to include severance agreements. Read this article and many others by checking out Ancel Glink's Municipal M...

Recently, in Hardin v. Marion County Sheriff's Department , the 7th Circuit Court of Appeals rejected Eric Hardin’s Title VII retaliation claim. The unanimous panel found that “no reasonable jury” could find that the investigation which led to Eric Hardin’s firing was a pretext.   Eric Hardin filed a federal lawsuit under Title VII of the Civil Rights Act of 1964 after he was terminated for stealing $100 from a person he arrested. Hardin contended that the real reason he was fired was because he testified on behalf of African American police officers in a race discrimination investigation.  However, the 7th Circuit found no evidence to support Hardin’s claim that the internal investigation was a “sham” designed to give the Department grounds to end his employment. Instead, the Court found that the investigation at issue was thorough and transparent noting that the investigators interviewed each and every person involved in the incident (14 in all), reviewed surveillan...