The Workplace Report with Ancel Glink

Last June we reported on what seemed to be a somewhat surprising decision by the NLRB against Cooper Tire & Rubber Company when it fired an employee for making racist comments on the picket line. As readers may recall, the discharged employee, a Caucasian worker, was participating in a lawful picket outside of the employer’s facility. As a group of African American replacement workers drove by, the employee yelled derisive comments at the workers about  “fried chicken and watermelon.”  Cooper Tire fired the employee for engaging in discriminatory conduct. The employee and his union grieved his discharge, which was upheld by an arbitrator. The union and the employee then filed an unfair labor practice with the NLRB alleging that Cooper Tire interfered with his Section 7 rights to engage in concerted protected activity. The judge's ruling, in favor of the employee, was based on a series of NLRB decisions protecting the rights of picketing workers, including a 2006 decision ...

The EEOC recently announced that it brought in a record $525 million of monetary awards in 2015. The EEOC is a federal agency that enforces federal labor laws that protect workers from discrimination. Among the laws that the EEOC enforces are Title VII of the 1964 Civil Rights Act, the Pregnancy Discrimination Act , the Age Discrimination in Employment Act , and the Americans with Disabilities Act.  The EEOC’s $525 million haul is a marked increase from the $390 million it received in 2014. The EEOC brought in this money through lawsuits, mediation, and settlements with employers it accused of violating federal employment laws. Its record haul is due in large part to its aggressive enforcement of these laws. “There is a growing awareness—across racial and ethnic lines—that we must do more as a country to address issues of equality,” the EEOC’s chairperson said in a statement. Indeed, over the last few years, the EEOC has markedly increased the number of lawsuits and legal proc...

Jingle bells, jingle bells, a lawsuit on its way!  Alcohol, colleagues, and those holiday work parties are the perfect ingredients for unwanted employer liability and litigation. Personal injury and sexual harassment claims are merely examples of what might arise from a holiday work party.   Alcohol is often a staple at  holiday parties, but; an employer’s liability as a result of overindulgence may depend on whether attendance at the party is mandatory.  In Stephenson v. Universal Metrics, Inc. , a motorist’s estate attempted to hold an employer liable after its employee became drunk at a work-sponsored function and, on his way home, killed both himself and another motorist. Luckily for the employer, the Wisconsin Supreme Court held the employer was immune from liability under Wis. Stat. § 125.035.  Stephenson v. Universal Metrics, Inc. , 2002 WI 30, ¶ 11, 251 Wis. 2d 171, 185, 641 N.W.2d 158, 162.  Similarly, in Sayles v. Piccadilly Cafeterias, Inc ....

Is Your Local Government Entity an ALE, an ALE Member or a DGE? Like many U.S. Government regulations, and virtually all regulations issued by the Internal Revenue Service, regulations governing required tax filing under the Affordable Care Act (Obamacare) are filled with acronyms, abbreviations, and short-hand references.  This is certainly true of the annual information reporting obligations of employers and insurers that will be due to be filed for the first time in 2016.   Final tax forms have been issued by the IRS.  These forms – 1095-C, 1094-C, 1095-B, and 1094-C -- are available, along with instructions for filling out the forms on the IRS website.   Information returns must be filed by February 28, 2016, if filed manually, or March 31, 2016, if filed electronically.  Information statements to recipients are due to be provided by February 1, 2016.  Following are a few definitions of short-hand terms that you may need to know in order to...

On November 3, 2015, the EEOC filed a federal lawsuit against an employer who allegedly refused to hire a recovering drug addict using methadone. In EEOC v. Randstad, US, LP , the EEOC alleged that the employer’s refusal to hire April Cox violated the Americans with Disabilities Act (“ADA”). According to the court filing, April Cox is a recovering heroin addict enrolled in a supervised methadone treatment program. In January 2015, Cox applied for a job as a production laborer. Cox disclosed that she was in a methadone treatment program when she was asked to submit to a pre-employment drug test.  It is alleged that a manager stated to Cox that “I’m sure we don’t hire people on methadone, but I will contact my supervisor.”  Cox was never asked to take the drug test and was not hired. The lawsuit alleges violations of the ADA on the grounds that Cox is “disabled” because she is a recovering substance abuser, that Cox has a record of disability, and that she was “regarded...

A few days ago, I was looking at pictures of businessmen from the 1970s, and couldn’t help but chuckle. Businessmen wearing suits sported long, flowing hair, full mustaches, and sideburns down to their chins. I couldn’t help but be amazed that these businessmen could sport these types of hairstyles without getting in trouble from their employers. What would happen today if an employee came to work with a 1970s-esque hairstyle? Could his employer tell him to cut his hair? The answer is yes, although, as explained below, there are some important exceptions. Private employers enjoy a wide legal berth when it comes to dictating the appearance of their employees. For private employers, there is no federal or state law that explicitly prohibits an employer from requiring employees to sport particular hairstyles. Courts have upheld policies prohibiting employees from wearing dreadlocks, mohawks, or even having long hair.  However, before you give that employee with an annoying ha...

Wage and hour laws are deceptively complicated. While the rules are general, they must be applied on a case by case basis. The application of wage and hours laws to individual  employees is often what trips up employees. Here are five common errors that employers make and how to avoid them: 1. They assume that if they put their employee on a salary then the employee is automatically exempt. While it is true that all hourly employees are exempt, the reverse of that is not always true. Sometimes employers believe that if they start paying employees on a salary basis then they will automatically be exempt. Payment of wages on a salary basis is but one of the tests for exempt status. In order for an employee to be truly exempt, they must meet both the salary and duties test. An exempt employee must be paid, for now, a salary which equals or exceeds $455.00 a week (soon to increase dramatically with the amended DOL regulations) and performs the duties of one or more defined exem...

Holidays are happy for some, depressing for others.  Proposed wage and salary changes may have the same effect, depending on whether you are receiving the increase or responsible to pay the increase. While no elected official wants to be perceived as Uncle Scrooge, government employers face a daunting challenge in meeting coming personnel cost increases.  As previously reported, the United States Department of Labor issued proposed regulations in July of this year proposing to increase the salary level test for overtime exempt employees, executive, administrative and professional employees from $23,660.00 per year to $47,892.00 per year. Additionally, the proposed rules will provide a mechanism where the minimum salary level of $47,892.00 is adjusted annually to keep pace with inflation or overall wage increases. Many smaller jurisdictions employ managerial employees at salary amounts less than the proposed minimum amount of $47,892.00. Governmental employers will need to...

How many of you have a dress code that includes statements something like this: Men must wear trousers and have a suit coat and tie on hand; Women must wear slacks, skirts or dresses.  Now, what if an employee on your staff is transgender, meaning in this case those individuals who have not surgically transitioned to the opposite gender of their birth, but identify with that opposite gender? Does the employee who was born   male but identifies as a female have to wear trousers and have a suit coat and tie available? Similarly, does a female who identifies as a male have to wear slacks, skirts or dresses when he really feels it’s more appropriate to his gender identity to wear trousers and a coat and tie? By requiring employees to dress consistent with their birth gender, even if they identify with the opposite gender, is an employer discriminating against that worker? The EEOC ruled in the Macy case that discrimination based on gender identity violated Title VII...

The last 50 years have seen profound changes in social roles in the United States. As women have entered the workforce in greater numbers, men have taken on more responsibilities around the house. A variety of lifestyles have gained increasing acceptance, making behaviors once seen as fringe, like changing genders, socially acceptable and legally protected. Despite these changes, it is indisputable that gender stereotypes still exist. Many people still expect men to act, dress, and behave in a masculine way, and for women to behave in a feminine way. And, as a number of cases have shown, these stereotypes are often brought into the workplace.  This is something employers should be careful about. “Gender stereotyping,” as that term has been defined by the courts, is illegal. Courts have held that it violates Title VII of the Civil Rights Act of 1964, which prohibits, among other things, discrimination based on gender. Gender stereotyping may also violate state laws that pro...

With the popularity of Facebook and other social media employee remarks are easier to access and enjoy a much wider potential audience than before. This may be why there seems to be a significant increase in these kinds of claims. By now, we know that the speech of a public employee about their employer is not protected if the content of the statements were related to their duties or if it reflects personal opinion resulting in disruption to the operations of the employer. Enter the Fire Chief in Lincoln Heights, Ohio.  Evidently, Lincoln Heights, Ohio is a hotbed of litigation, so much so that the liability insurance risk pool to which it belonged notified it that it was terminating the Village’s membership in the pool because of the excessive number of claims against it. Fire Chief Jonah Holbrook  received a copy of this letter from Village Manager Stephanie Dumas with a warning from her that the Village might have to eliminate its Fire Department. Holbrook quickly ...

According to EEOC data based on private sector filings for Fiscal Year 2014, the top ten categories for employment discrimination charges are: Retaliation under all federal employment statutes. Race (including racial harassment). Sex (including pregnancy and sexual harassment). Disability Age National Origin Religion Color Equal Pay Act Genetic Information Non-Discrimination Act Discharge continues to be the most common issue for all bases of discrimination under Title VII (which bars job discrimination based on race, color, religion, sex and national origin), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). For fiscal year 2014, the EEOC reports it obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation. Under the federal employment laws, a discharged employee may seek recovery in court for back pay, compensatory damages, front pay and reasonable attorney’s...

In August of 2014, the Illinois Department of Labor issued amendments to the Illinois Wage Payment and Collection Act regulation 300.520.  Most of the attention focused on the new requirement that employers keep time records for exempt employees. We’d guess that many employers, in fact, are still struggling with compliance of that requirement. But, another amendment to the same regulation, issued at the same time, raises questions about the continued validity of commonly utilized “use or lose” vacation policies.  The regulation has long contained the following provision: e)         An employment contract or an employer's policy may require an employee to take vacation by a certain date or lose the vacation, provided that the employee is given a reasonable opportunity to take the vacation.  The employer must demonstrate that the employee had notice of the contract or policy provision. That provision remains in the current version of the ...

The use of current technology to track employees is almost irresistible to employers. This is especially true when an employee’s duties include being away from the employer’s  base of operations. It seems easy for an employee to work  personal errands or stops into their day without the employer ever being the wiser. Shore Point Distribution Co. in New Jersey suspected just such misconduct on the part of one of its employees. Generally when the company had such suspicions it hired a private investigator to conduct surveillance on the individual.  On this occasion, it also installed a gps device on the employee’s truck.  The gps information confirmed the surveillance information from the investigator that the employee was stealing time. Based on the results of the investigation, the employer discharged the employee. The employee’s union filed an unfair labor practice claiming that the installation the gps device and use of the information gathered from it as ...

A Taiwanese professor who was fired for the way she interacted with students did not provide enough evidence that her university illegally discriminated against her, a court recently held . Ya-Chen Chen taught Chinese at the City University of New York, where her colleagues complained about her “overaggressiveness and lack of tact.” One of her supervisors wrote that she “made clear that she does not have time in her schedule for students who require more attention than she is willing to provide, even if they seek that time during her office hours.” She also “spent hours refusing to accept responsibility for her own actions,” according to the supervisor. As a result of Chen’s negative reviews, the University decided not to renew her contract. Chen sued, claiming that the University discriminated against her because she was “a non-white, junior and foreign woman.” She claimed that this discrimination violated her rights under Title VII of the Civil Rights Act of 1964, which forbids ...

Body art (aka tattoos) is enjoying a great deal of popularity these days, especially among younger generations.  Police departments sometimes struggle with how to regulate tattoo exposure among their officers. Last week the district court dismissed a suit filed by Chicago police officers claiming that a newly enacted policy requiring police officers to cover tattoos while on duty was a violation of their First Amendment rights of free speech. In Medici v. City of Chicago, the plaintiffs were Chicago police officers and all armed forces veterans. The Chicago Police Department issued a revision to its dress code policy last June which required all officers to cover any tattoos that were visible outside of clothing with skin colored adhesive bandages or tattoo covers when they were on duty or representing the Department. The plaintiffs all had tattoos either memorializing their armed forces service or their religious beliefs that were visible when wearing their uniforms.  ...