The Workplace Report with Ancel Glink

Employers  know that the NLRB prohibits them from taking adverse action against their employees for engaging in “concerted activity” whether employees are unionized or not. But can it be considered concerted activity if it involves just one employee griping about being too busy? The Third Circuit recently ruled that even individual complaints can be protected under the law.   MCPC, Inc. provides technology services, including the creation of complex telephone services for companies. It employs “solution architects” to design the technology and “delivery engineers” to implement the designs. During the period in question the company was short staffed and was requiring employees to function in both of those roles. During an impromptu lunch with his supervisor and two co-workers, employee Jason Galanter complained to his supervisor that he was being overworked by having to do the work of both a solution architect and a delivery engineer. That might have been fine except he fo...

Recently, in Bagwe v. Sedgwick Claims Management Services, Inc ., the Seventh Circuit Court of Appeals rejected the plaintiff’s federal employment discrimination lawsuit alleging violations of Title VII of the Civil Rights Act of 1964 and other laws.  Specifically, Ms. Bagwe  alleged discrimination in employment on the basis of race and national origin. Bagwe was born in India and is of Indian descent. Bagwe alleged that her employer had paid her a comparatively low salary because of her race and national origin.  She also alleged that she was terminated for retaliatory and racially discriminatory reasons after she made discrimination complaints.  In response, Sedgwick argued that Bagwe was terminated for legitimate, non-discriminatory reasons because she demonstrated poor leadership skills. The burden of proof then shifted to Bagwe to establish that such rationale was "unworthy of belief.”  Unfortunately for the plaintiff, she could not prove her case. ...

Authored by Julie Tappendorf and originally posted on Ancel Glink's  Municipal Minute  blog where readers can keep up to date on a broad spectrum of local governmental issues. The U.S. Supreme Court will consider a First Amendment case involving a government employee who claims he was demoted for political reasons.  The Court heard oral arguments last week, and will issue an opinion this term.  The question before the Court is whether a public employee can establish a violation of his right to political association where he was demoted for holding a campaign sign for his employer's (mayor) opponent. Heffernan v. City of Paterson . According to Scotusblog , the Justices grappled with a variety of issues and questions, including whether merely holding a campaign sign was "associating" with someone that would be protected by the First Amendment.  Much of the questioning centered on whether a court should find a First Amendment violation for a "perceived"...

Authored by Julie Tappendorf and originally posted on Ancel Glink's Municipal Minute blog where readers can keep up to date on a broad spectrum of local governmental issues. The Illinois General Assembly introduced HB 4999 last week proposing to amend the "Right to Privacy in the Workplace Act." If enacted, the bill would make it illegal for an employer or prospective employer to: ask or require an employee or job candidate to access a personal online account in the presence of the employer; require an employee or job candidate to invite the employer to join a group affiliated with a personal account of the employee or candidate; or require an employee or job candidate to join an online account established by the employer. discharge, discipline, discriminate against, retaliate against, or otherwise penalize an employee, or refuse to hire a job candidate, who refuses or declines to provide the employer with the prohibited information or access. These chang...

West Virginia recently became the 26th state to pass a right-to-work law. One of the more unionized states in the country, West Virginia has followed the trend of other traditionally labor-friendly states, like Wisconsin and Michigan, of passing right-to-work legislation.  Right-to-work laws make it illegal for non-union members to be required to pay union dues or for employees to be required to join a union. Federal law gives states the authority to pass right-to-work legislation. 26 states have passed such laws, most of them in the South and West, although a number of Mid-Western states have recently passed right-to-work legislation.   Critics of right-to-work laws say that they allow non-union employees to be free-riders, since they get the benefits negotiated by a union (i.e. higher wages, better healthcare, etc.) without having to pay for the union to negotiate.  Supporters of right-to-work laws argue that it is unfair for unions to force employees to ...

We often caution readers to call an experienced labor and employment attorney before taking adverse action against an employee. It may seem that we’re just shamelessly hunting for business. The real reason, though, is that the price tag of a a mistake is just so darn high. Here’s a recent example. In 2007 Sheridan Health Care Center, a nursing home, discharged Danielle Pickett, but only after she complained that she was being sexually harassed by residents of the facility. She filed suit for sexual harassment and retaliation.  The court eventually ruled against her on the harassment claim, but ruled in her favor on the retaliation claim.  As the law provides, her attorneys sought an order for the defendant to pay the plaintiff’s attorneys’ fees.  The court recently awarded the plaintiff’s attorneys in excess of $131,000 for their fees, finding that an hourly rate of $425 was reasonable. That’s more than double the award to the plaintiff of $65,000.  It’s a s...

Save-A-Lot Grocery, a Mississippi-based grocery company, will pay a former employee $125,000 to settle a sexual harassment lawsuit brought by the Equal Employment Opportunity Commission (EEOC).  The lawsuit alleged that Sharon Bennett, a Save-A-Lot cashier, was subjected to severe and pervasive sexual harassment by the former store manager.  The harassment is alleged to include lewd comments and requests for sexual favors that escalated to a physical assault. The EEOC alleged that Bennett informed the store owner of the sexual harassment and assault, but that the employer failed to take corrective action. The EEOC lawsuit was filed in the Greenville Division of the U.S. District Court for the Northern District of Mississippi after first attempting to reach a pre-litigation settlement through the EEOC’s conciliation process. Specifically, the lawsuit asserted violations of Title VII of the Civil Rights Act of 1964 which protects employees from workplace sexual harassment. ...

Many of our clients have inquired about the U.S. Supreme Court case involving “fair share” union dues. The case involves a California teacher named Rebecca Friedrichs and it raises an issue that lies at the heart of most public sector union’s success; the ability to collect dues from every person in a bargaining unit regardless of whether or not they support the union or its objectives. The case was recently argued and a decision is expected this summer. Ms. Friedrichs, who has elected not to be a member of the union, is challenging the fact that she has to pay her “fair share.”  The union claims that fair share dues are necessary for non-members in order to offset the costs associated with collective bargaining. The unions take the position that the work they do in collective bargaining benefits everyone in the bargaining unit, regardless of whether or not everyone in the bargaining unit chooses to join the union and pay dues. Ms. Friedrichs disagrees with this notion, claimi...

Although the Public Employee Disability Act was enacted 43 years ago, questions still arise from time to time on the implementation of the Act.  The most important provision of this Act provides as follows:  Whenever an eligible employee suffers any injury in the line of duty which causes him to be unable to perform his duties, he shall continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation, or service credits in a public employee pension fund during the time he is unable to perform his duties due to the result of the injury, but not longer than one year in relation to the same injury. This provision also turns out to be the one that continues to raise the most questions, such as the following: 1. When an employee is collecting PEDA benefits, does he or she also accrue other benefits, such as vacation, personal and sick ...

Identity theft is one of the fastest growing crimes in the United States. One of the primary ways that identity theft occurs is through the misuse of another person’s Social Security Number.  Due to this, in 2010 the Illinois General Assembly passed the Identity Protection Act (5 ILCS 179/10). Employers should be aware of this law and ensure that they are not unwittingly violating it.  The Identity Protection Act requires employers, both public and private, to protect social security numbers. The Act makes it a crime for employers to do the following: Publicly post an individual’s Social Security Number; Print an individual’s Social Security Number on any card required to access products to services; Require a Social Security Number to be transmitted over the internet unless the connection is secure of the social security number is encrypted; Mail any materials containing an individual’s Social Security Number.  Require an individual to use his Social Se...

Employers sometimes forget that their legal obligations as employers starts well before a job offer is made or the optimism that a new hire is a perfect fit starts to wane.  The EEOC gave one Missouri McDonald’s restaurant a potentially costly reminder of this recently when it filed suit against it alleging that it violated the ADA when it failed to provide a sign language interpreter for a hearing impaired applicant.  The claimant made an application to the McDonald’s restaurant and was called to come in for an interview. A few days before the interview, she contacted the employer and requested a sign language interpreter because she was hearing impaired. The applicant even offered to bring her sister to act as the interpreter. The restaurant failed to get back to her on her request and ultimately hired someone else for the job. Now, maybe the message from the applicant just got lost in the shuffle of paperwork, or maybe the individual in charge of hiring just didn’t...

Today’s employers must stay on top of the maze of new labor and employment laws of the workplace.  Let Ancel Glink’s team of  attorneys help.  We offer workshops and individual consultation in the following hot areas: Background Checks and Fair Credit Reporting Act Misclassification of Employees under the FLSA Independent Contractors Social Media The ADA and FMLA Minefield Pregnancy Discrimination and Accommodations Religious Discrimination and Accommodations LGBT Issues Drug Testing and Medical Marijuana Retaliation and Whistleblowing PSEBA  If you would like to learn more about our services, please contact Margaret Kostopulos at mkostopulos@ancelglink.com  or Darcy Proctor at dproctor@ancelglink.com .  We look forwarding to hearing from you!

What is the process by which a bargaining unit may change its recognized labor organization? Say for example, the police are currently represented by the Fraternal Order of Police, but the Police Benevolent and Protective Association wants to represent the police. The Illinois State Labor Relations Board has issued rules governing the change of a recognized representative.  Board Rule 1210.10 states that the procedures contained in the Board Rules are the exclusive means by which a public employer may recognize a labor organization after August 22, 1984. Board Rule 1210.20 provides that a labor organization seeking recognition where the bargaining unit is already represented must file with the Board a representation petition seeking an election. Board Rule 1210.30 sets forth the options of the employer in responding to such a petition. The employer may (1) file a representation petition with the Board; or (2) may decline to respond. The employer may not voluntarily recognize t...

Last week was the five-year anniversary of Blizzard-ageddon, the apocalyptic snowstorm that shut down Chicago. Schools, businesses, and offices were closed while the City dug itself out of more than two feet of snow. Those who attempted to make it to work probably found themselves delayed, if they were able to make it at all. This raises an interesting question for employers. If an employee comes to work late due to bad weather, problems with traffic or public transportation, being struck by lightning, etc., does the employer have to pay the employee for the time missed from work?  If the employee is paid by the hour, the answer is no. Employers are only required to pay hourly employees for the time they actually spend at work. There is no law requiring employers to pay employees for time they spend travelling to and from work. Of course, if travelling is part of that employee’s work-related duties, then the employer must pay that employee for time spent travelling. However, t...

Traditionally, Illinois employers have always understood that “misconduct” necessary to warrant denial of unemployment compensation benefits requires proof either of a violation of an express workplace rule or of conduct detrimental to the employer that is commonly accepted as being wrong.  The Illinois Supreme Court has now changed that understanding. In Petrovic v. The Department of Employment Security , ___Ill.2d___ (Feb. 4, 2016), the Supreme Court found a former employee of American Airlines eligible for benefits despite conduct that was described by the referee as being “so commonly accepted as wrong that employers need not have rules covering [such conduct].”  The case involved the termination of an employee for upgrading a friend to first class and providing the friend with a free bottle of champagne.   After the IDES Board of Review sustained the denial of benefits, the circuit court reversed the Board of Review and the appellate court then reversed the ...

Late last week, a Cook County Circuit Court jury awarded Rudolph Francek (a former Dominick’s worker) $2.65 million finding that Dominick’s parent company, Safeway, Inc., retaliated against his worker’s compensation claim by firing him.   Francek filed a lawsuit in Cook County state court alleging he was fired in retaliation for having filed a worker’s compensation claim arising from a shoulder injury.  Francek alleged that Dominick’s fired him after unilaterally changing his absences from excused for injury to “no call, no show” based on an independent medical examination without notice.  After Francek’s third no-call-no show, the company terminated him pursuant to its attendance policy requiring such action. The employer contended Francek was terminated for “legitimate, non-discriminatory reasons.” The jury disagreed and awarded Francek $31,315.50 in medical, $75,000 for past emotional distress, $50,000 for future emotional and/or psychological damages, and $2....

Authored by Julie Tappendorf and originally posted on the Municipal Minute with Ancel Glink: The U.S. Supreme Court will consider a First Amendment case involving a government employee who claims he was demoted for political reasons.  The Court heard oral arguments last week, and will issue an opinion this term.  The question before the Court is whether a public employee can establish a violation of his right to political association where he was demoted for holding a campaign sign for his employer's (mayor) opponent. Heffernan v. City of Paterson . According to Scotusblog , the Justices grappled with a variety of issues and questions, including whether merely holding a campaign sign was "associating" with someone that would be protected by the First Amendment.  Much of the questioning centered on whether a court should find a First Amendment violation for a "perceived" exercise of First Amendment rights (i.e., the government's wrong doing ) or whethe...

Employers may want to rethink policies that prohibit audio or video recording in the workplace in light of a recent ruling by the National Labor Relations Board ( NLRB ). The NLRB found that Whole Foods’s policy of prohibiting its employees from any audio or video recording in the workplace violated the National Labor Relations Act (NLRA), a law that allows workers to unionize.  Under the NLRA, employers may not prohibit their employees from joining a union. They also cannot prohibit their employees from discussing unionization, distributing literature, or sending emails about unionization, although they can impose reasonable restrictions on when and where unionization discussions or distribution of literature takes place. Employers also may not implement policies that might discourage employees from discussing unionization.   The lawsuit against Whole Foods alleged that its policy of prohibiting recording in the workplace discouraged employees from discussing union...