The Workplace Report with Ancel Glink

The 2nd Appellate District has weighed in on the question of whether an award of a line of duty disability automatically qualifies the employee for no cost lifetime health benefits under the Public Safety Employee Benefits Act (“PSEBA”).  To qualify for these benefits, the Act itself contains a two part test. The employee must show that he or she sustained a catastrophic injury and that it occurred as a result of the employee’s “response to what is reasonably believed to be an emergency, an unlawful act perpetrated by another or during the investigation of a criminal act.” In the case of Bremer v. City of Rockford 2015 IL App (2d) 130920, the plaintiff was a veteran firefighter for the City who applied for a duty disability based on his diagnosis of cardiomyopathy.  During the pension board hearing,  he presented evidence that his disease was the result of many years of exposure to smoke and toxic chemicals. The pension board found that he was eligible for a dis...

Over the past couple of years, the Equal Opportunity Employment Commission (EEOC), the federal agency in charge of enforcing federal anti-discrimination laws, has been trying to argue that Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee because of that employee’s sexual orientation. Last Wednesday , this argument received a powerful rebuke from Judge Andrea Wood of the Northern District of Illinois. Judge Wood dismissed a lawsuit where an employee claimed that he was discriminated against because of his sexual orientation by his employer, finding that Title VII does not prohibit discrimination based on sexual orientation.  Title VII prohibits an employer from discriminating against an employee due to, among other things, that employee’s gender. Last July , the EEOC ruled that discrimination based on sexual orientation was a form of gender discrimination, thereby making discrimination based on sexual orientation illegal u...

Recovering the employer’s property can be a major struggle when an employee leaves their job – especially if their separation is not voluntary. All of the sudden, tools, phones, laptops and the like are suddenly lost, stolen or are returned with so much damage that it’s often not worth the cost of repair. Wouldn’t it be nice if the employer could hold the worker responsible for the cost of replacing or repairing lost, stolen or damaged property. In many instances, the employer can do this, but it takes a little planning. First, let’s address what employer’s cannot do, although many try. Employers cannot condition receipt of an employee’s final paycheck on the worker’s return of all of the employer’s property in their possession. The Wage Payment and Collection Act requires that an employee’s final wages be paid no later than the next regular pay date of the employer. You can see how this could conflict with holding a paycheck until an employee returns all of the employer’s propert...

According to OSHA, approximately 2 million American workers are victims of workplace violence each year. Workplace violence is a growing concern for employers and employees nationwide. Employers who do not take reasonable steps to prevent workplace violence and abate a recognized violence hazard can be cited and may also be legally liable to a worker injured as a result of workplace violence.  What is Workplace Violence? Workplace violence is violence or the threat of violence against workers.  It can occur at or outside the workplace and can range from threats and verbal abuse to physical assaults and even death. How Can Employers Help Protect Their Workers? The best protection employers can offer is to establish a “zero-tolerance” policy on workplace violence against or by their employees.  Employers should establish a workplace violence protection program and incorporate the information into an existing handbook or manual of operating procedures.  It ...

The EEOC takes the position that discrimination based on gender identity is gender discrimination under Title VII. The Illinois Human Rights Act prohibits discrimination based on gender identity. Given that these existing laws are incorporated into almost every employee handbook, is it really necessary to create special policies to address workplace protections for transgender employees?  Maybe. First of all, it is important to establish a policy for transitioning workers if your workplace is currently without one. A comprehensive policy which sets forth the workplace requirements and rights of a worker who is transitioning not only avoids confusion, but evidences the employer’s commitment to a non-discriminatory workplace and respects the transitioning worker’s needs. Think of it like the routine practice of including sexual harassment policies in handbooks. Yes, sexual harassment is prohibited as part of Title VII and IHRA protections against gender discrimination, but a big...

As children, a hurtful taunt was often to call a boy by a girl’s name or a girl by a boy’s name. Maybe the hurt was borne from the apparent repudiation of the child’s fundamental identity in their gender, but kids who taunted that way definitely intended to humiliate and bully their target.  Adults as well are often particular about their names. Most don’t like it when people impose an unwanted nickname or call someone by a name other than the one of their choosing. This can also become an issue for non-conforming gender workers. Employees who do not live or present themselves as a member of their assigned gender often face confusing and sometimes humiliating situations in the workplace when called by the wrong name or pronoun, either purposely or inadvertently. The problem is that transgender or transitioning workers may legally have a different name than the one they choose to use to better reflect their affirmed gender. How do employers handle this? It’s fairly clear th...

While service dogs have long been used by the blind and deaf, they are increasingly being used to treat other disabilities. For example, service dogs have been used for the treatment of post-traumatic stress disorder and anxiety . Additionally, dogs are not the only animals used to help the disabled. Horses have been used to help the blind, and boa constrictors have been used to warn epileptics of oncoming seizures. As service animal use becomes more widespread, the odds of an employee requesting to use one in the workplace will probably increase. Does an employer have to allow an employee to use the service animal in the workplace? The answer to this depends on the type of animal and the way in which it will be used. The Americans with Disabilities Act (ADA) requires employers to make changes to the workplace that allow an employee with disabilities to work. Only if the changes that the employee requests would be too burdensome may the employer refuse to grant the employee’s ...

Back in 2014 we reported on the case of EEOC v. Flambeau, Inc. In that case, the employer made employee participation in the company sponsored health insurance plan contingent on a medical evaluation through its wellness program. The EEOC alleged that the employee of Flambeau, Inc., in Baraboo, Wisconsin, was hospitalized with a heart condition at the time that his employer mandated that all employees receiving employer sponsored health insurance undergo biometric testing and a health risk assessment as part of their wellness program. Part of the biometric testing and risk assessment required employees to, among other things, undergo tests and disclose medical history that would reveal conditions covered by the ADA that were not job related. Moreover, the employer had a policy that any employee who did not undergo the evaluation would lose their right to participate in the employer sponsored insurance plan with the employer contribution towards premium. Rather those non-participat...

Earlier this week, in Jaburek v. Foxx (Case No. 15-2165), the Seventh Circuit Court of Appeals affirmed the ruling of the U.S. District Court in favor of the employer in a federal lawsuit alleging violations of Title VII and the Equal Pay Act.  Plaintiff, Roberta Jaburek alleged that her employer, the Federal Aviation Administration (FAA), a division of the Department of Transportation, discriminated against her because of her national origin (Mexican descent) and sex.    Title VII prohibits employers from discriminating against its employees based on “race, color, religion, sex or national origin.” 42 U.S.C. Section 2000e-2(a). To demonstrate a prima facie case for failure to promote under Title VII, plaintiff must produce evidence showing that: 1) she was a member of a protected class; 2) she was qualified for the position sought, 3) she was rejected for the position; and 4) the employer promoted someone outside of the protected group who was not better qualified...

The 7th Circuit Court of Appeals ruled this week that a Chicago police officer’s complaints of verbal assault by a fellow officer while on duty were not protected speech, once again drawing the line between matters of personal versus public interest. The facts as reported by the court are somewhat compelling for the plaintiff, Laura Kubiak, in her suit against the Chicago Police Department. Kubiak  was assigned as a news media liaison, a position which she claims is highly sought after and prestigious. During the course of her work, she apparently prepared a report that angered one of her co-workers who verbally assaulted her with profane and derogatory remarks and made movements as if he was going to hit her. Plaintiff reported this to her supervisors up the chain of command. She also made a complaint with Office of Internal Affairs and sought help from EAP. Internal Affairs “substantiated” her complaint with that office, but the plaintiff claimed that her supervisors never r...

On January 4, 2016, the Task Force on Local Government Consolidation and Unfunded Mandates released its Final Report on “Delivering Efficient, Effective, and Streamlined Government to Illinois Taxpayers”.  The Task Force was established by Governor Rauner by means of Executive Order 15-15 in February of 2015.  It states, among other things, that “the State of Illinois has 6,963 units of local government…, the highest number in the United States by more than 1,800 units”.  It also states that “unfunded mandates create burdens upon local governments and school districts, reducing efficiency”.  One of those unfunded mandates is the obligation of units of local government in Illinois to engage in collective bargaining with unions representing various classifications of public employees. While the Report contains a number of recommendations to increase the efficiency of local government and reduce the burden on Illinois taxpayers by means of consolidation and intergo...

Most employers love a gung-ho employee. The employee who will volunteer to work weekends and who rarely takes a day off. While employers may be tempted schedule these employees to work every day, doing so may not be permitted by Illinois law.  The One Day of Rest in Seven Act (820 ILCS 140/1, et seq. ) requires an employer to provide an employee with at least 24 consecutive hours off of work in every 7-day period. This means that an employee who works Monday through Saturday cannot be required to work Sunday.  There are, however, a number of employees who are exempt from this law. These include: Employees working less than 20-hours-a-week; Executive, administrative, or professional employees ; Employees who are needed in case of an emergency; Employees in agriculture or coal mining; Watchmen, security guards, or sailors; These employees can be required to work 7-days-in-a-row without a 24-hour break.  This law also permits employees who work at ...

By means of Notice 2016-4, issued December 28, 2015, the Internal Revenue Service extended the Affordable Care Act Information Return deadlines.  The extensions will provide much-needed relief to employers and insurers that are struggling with the required forms.  The following chart shows the new deadlines: Action                                                              Old Deadline                     New Deadline Provision to individuals of 2015 Form           February 1, 2016             March 31,...

Many an employer has hired a candidate who seemed great during the interview process, but shortly after hire reveals behaviors or attitudes that quickly explain why he or she left their old job. Those that hired the employee scratch their heads and say “if only we knew before what we know now.” Former employers often whitewash the circumstances of an employee’s departure in fear of litigation. With increasing sensitivity towards police practices, it is especially important to understand whether a candidate’s past employment raises a red flag for prospective employers. As part of Omnibus Police Reform Bill SB 1304 provides that the Illinois Law Enforcement Training Standards Board will create and maintain an officer professional conduct database. All law enforcement agencies must notify the Board when an officer is discharged or dismissed; or an officer resigns while under investigation for a Class 2 or greater felony. The database will be available to any chief administrative of...

Early last year, Governor Rauner created a Task Force to consider the consolidation of Illinois’ many units of local government and the impact that unfunded mandates has had on them.  Today, the Task Force issued a report of over 400 pages with its findings and recommendations, some of which may eventually impact collective bargaining and employee issues.  The recommendations of the task force that may impact your labor force mostly involve limitations on future unfunded mandates.  Briefly summarized, these are as follows:  Repeal or reform prevailing wage. Provide third-party contracting mandate relief for school districts. Make collective bargaining permissive, instead of mandatory.  Eliminate minimum manning from collective bargaining.  Use the federal definition for “catastrophic injury” under the Public Employee Safety Benefits Act.  Allow arbitrators to use existing financial parameters of local government as a primary consi...

Yahoo’s CEO, Marissa Mayer , and Facebook’s CEO, Mark Zuckerberg , have been in the news recently for the amount of maternity/paternity leave they plan to take. Bucking traditional norms in which maternity leave is generally longer than paternity leave, Mayer plans to take just two weeks of maternity leave, while Zuckerberg plans to take two months of paternity leave. This story probably led many employers to wonder: how much time off do I have to give an employee for maternity or paternity leave?  The answer depends on the size of your company and where you live. If your company has 50 or more employees, or you are a federal, state, or local government employer with more than 50 employees , then you are required to provide employees who have worked at least 1,250 hours over the previous 12 months with up to 12 weeks of maternity or paternity leave under the Family and Medical Leave Act (FMLA). The FMLA requires employers to provide the same amount of leave to both men and ...

It’s a new year and a fresh start. Many employers consider reviewing and updating their employee handbooks around this time to include important new laws that change the employment landscape and to stay current with employment trends.  Here is our top five to watch: 1. Transgender issues. This issue is positively exploding in the media, in our society as a whole and in the workplace.  The EEOC has already declared that discrimination based on gender identity is gender discrimination prohibited by law. In Illinois, the Illinois Human Rights Act prohibits adverse employment actions based on gender identity. Employers need to not only implement policies which protect individuals from gender identity discrimination but must train their staff on these issues asap. 2. The ACA. At the end of 2015 the implementation of the “Cadillac Tax” was postponed for two years. Many employers rejoiced, and for good reason!  It may in fact signal the permanent demise ...