The Workplace Report with Ancel Glink

In a one sentence decision on Tuesday, March 30, 2016, the United States Supreme Court affirmed the decision of the lower court in Friedrichs v. California Teachers Association keeping public sector union “fair share” dues alive and well.  While the California Teachers Association is touting this as a “decision that recognizes that stripping public employees of their collective bargaining rights in the workplace is a step in the wrong direction,” that’s not really what it is.  In fact, it isn’t a decision at all. Because of a 4-4 tie as a result of the death of Justice Antonin Scalia, the lower court’s decision must be affirmed.  It’s as simple as that.  This isn’t a win for the unions.  It’s a non-decision.  And sadly it leaves the issues raised in Friedrichs unresolved.   The Friedrichs case was never about taking away the rights of public sector employees to form unions and to engage in collective bargaining.  It was about how the u...

We all know that the ADA requires employers to make reasonable accommodations to allow employees to perform the essential functions of their job. Can that ever mean that the employee is entitled to a driver? Recently, the 4th Circuit Court of Appeals found that a question of fact existed whether a pharmaceutical company could discharge a long time, award winning, sales representative from her position because she developed a vision disorder that prevented her from driving.  The employee, Stephenson, had worked for Pfizer for about 30 years as one of their top salespeople before she became unable to drive. Although she could still make effective sales presentations to doctors, her job required her to makes her sales calls at the doctors’ offices. Before her vision problem took her off the road, she reported driving a substantial part of every day.  Believing that she could still do her sales work, Stephenson requested a driver to allow her to maintain her schedule ...

The EEOC recently published a one-page fact sheet for small businesses, which you can access here . While the fact sheet is geared towards small businesses, other employers should check it out too, as it discusses federal labor laws, which cover every employer with 15 or more employees. Here at The Workplace Report, we have written about virtually all of the topics discussed in this fact sheet, which you can see by clicking on the links below. These topics include: Making sure that employment decisions are not based on race, color, religion, sex, national origin, disability, age, or genetic information. We have discussed laws prohibiting discrimination based on disability , age , gender , pregnancy , sexual orientation , and gender identity . We have also discussed reverse discrimination.  Creating workplace policies that are related to the job and that do not discriminate. We have discussed five policy updates that employers need to make right now , tips on creating employe...

On March 24, the Illinois Supreme Court handed down its decision in Jones v. Municipal Employees Annuity and Benefit Fund of Chicago , 2016 IL 119618.  The question in that case was whether Public Act 98-641, which amended the Illinois Pension Code with respect to several City of Chicago pension funds, violated the Illinois Constitution.  To the surprise of no one, the Court found the statute to be unconstitutional. Public Act 98-641 was passed by the General Assembly in 2014 to “address an immediate funding crisis that threatens the solvency and sustainability of the public pension systems … serving the City of Chicago”.  Among other provisions, the Act increased required employee contributions for members of the affected pension funds and changed the formula for the calculation of annuity benefits for two of the funds, effectively reducing those benefits over time.  The Court found that these effects violated Article XIII, Section 5 of the Illinois Constitutio...

Recently, in Liu v. Cook County Hospital, et al ., the Seventh Circuit Court of Appeals ruled in favor of the employer in a federal employment discrimination lawsuit filed by Dr. Katherine Liu, an emergency room physician at Cook County Hospital. Dr. Liu lost her surgical privileges and was eventually terminated from her position. Liu alleged discrimination based on race, sex and national origin in violation of Title VII of the Civil Rights Act of 1964. The Seventh Circuit upheld the lower court’s summary judgment for the employer finding, “when all is said and done, the fundamental question at the summary judgment stage is simply whether a reasonable jury could find prohibited discrimination.”  The burden is on the plaintiff to offer evidence that her employer’s stated non-discriminatory reason was a lie intended to mask unlawful discrimination. A plaintiff may show a genuine dispute of fact based on pretext by identifying “weaknessses, implausibilities, inconsistencies, or c...

Let’s say that you have an employee on intermittent leave because she suffers from migraines. You have suspected that she uses her condition to avoid work even when she is not suffering from a migraine, but she has a proper medical certification from her doctor on file and she always recertifies on request. The problem is that she seems to suffer more migraines on Fridays and Mondays and when she has expressed to co-workers that she has many personal obligations which need her attention.  So let’s say that you follow our advice and conduct surveillance on her on a few occasions when she has called in sick for her FMLA eligible reason. Sure enough, surveillance catches her on two separate occasions out shopping and running errands on days she supposedly was suffering from debilitating migraines. Is this enough evidence to fire her? Federal courts generally find that the answer to that question is “yes”. If an employer has an “honest suspicion” that an employee is abusing FM...

Employers should take heed of the new Position Statement Procedures adopted by the EEOC, effective January 1, 2016.  During an investigation, a Respondent may submit, or may be requested by the investigator to submit, a position statement and documents supporting its position.  The EEOC will provide the Respondent’s position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days .  But, the Charging Party’s response will not be provided to the Respondent.   What this means, quite obviously, is that employers and their attorneys must be very careful in preparing a position statement, because it will be available to the Charging Party’s attorney in the event a lawsuit is filed.  A position statement that is prepared without a full investigation of the facts could result in embarrassment of the employer’s representative in a deposition and possible impeachment material at trial. ...

Last Wednesday , business representatives met with the Equal Employment Opportunity Commission (EEOC) to discuss the gender pay gap between male and female employees. According to the Obama Administration, women make $0.79 to every $1 earned by a man, which is something that the President has repeatedly said that he would like to change .  The representatives discussed rules proposed by the EEOC that would require employers to report to the EEOC how much they pay their male and female employees. The EEOC would use this data to get a better picture of the gender pay gap and devise strategies to address it. The rules are set to take place in September 2017, although if a Republican is elected in November, it seems unlikely that they would go into effect.  Regardless of who is elected in November, employers would be wise to take steps to prevent lawsuits alleging that they pay their female employees less than their male employees. Title VII of the Civil Rights Act of 196...

As we have previously advised you, the U.S. Department of Labor (“the DOL”) has published proposed rules that are expected to increase the minimum salary necessary to qualify for one of the “white collar” exemptions from the overtime requirements of the Fair Labor Standards Act (“FLSA”).  Under current rules, established in 2004, an employee must be paid at least $455 per week ($23,660 per week) in order to qualify for exempt status.  The DOL is now proposing to increase the minimum salary for exempt status to $970 per week, or $50,440 per year for 2016, with a cost-of-living escalator for years after 2016. The new rules are expected to go into effect sometime this summer – perhaps as early as June.  Whether they will be effective immediately or whether employers will be given time to comply is not yet known.  Almost certainly, however, they will be effective before President Obama leaves office in January of 2017. Many public employers have exempt-level posit...

In a recent decision in Formella v. Brennan , the Seventh Circuit Court of Appeals affirmed summary judgment in favor of the employer in a reverse discrimination employment lawsuit filed in federal court. Plaintiff, Robert Formella, sued his employer, the United States Post Office (“USPS”) for employment discrimination based on race in violation of Title VII of the Civil Rights Act of 1964. Formella, a white male, worked as a postal police officer for USPS for 31 years.  In April 2011, Formella applied for a supervisor position which offered substantially more overtime compensation.  Ultimately, Formella competed for the position against two other officers, Officer Fields and Officer Brown, both of whom are African-American and over 40 years old.  Inspector in Charge, Thomas Brady, who is white, interviewed the three applicants, asking them all the same questions and scoring their responses on a numerical scale.   Based on the interviews, Brady hired Officer...

After having their federal lawsuit dismissed last Fall, a group of Chicago Police Department officers gained a victory before an arbitrator on a new policy requiring officers to cover their visible tattoos with clothing or flesh toned cover-ups when they are representing the Department.  Last summer, then Superintendent of Police Garry McCarthy revised the long standing uniform policy to require that officers cover up their tattoos “while on duty or representing the department, whether in uniform, conservative business attire or casual dress.” Three officers filed a federal lawsuit claiming that the new policy violated their First Amendment rights. The suit was dismissed by the court . The judge argued that visible tattoos could “undermine the CPD’s ability to maintain the public’s trust and respect, which would negatively impact the CPD’s ability to ensure safety and order.” Citing a tattoo of the Confederate flag as an example, Judge Kocoras wrote, “Due to the fact t...

The Equal Employment Opportunity Commission (EEOC) recently proposed major changes to the rules governing the way that it deals with claims of retaliation. Retaliation occurs when an employer takes negative action against an employee for making a complaint to the EEOC. If an employee complains to the EEOC alleging that his or her employer has violated federal labor laws, the employer cannot retaliate, or take negative action against, the employee for filing the complaint. So, for example, if an employee filed a complaint with the EEOC alleging sexual harassment, and the employer fired the employee as a result, this would constitute illegal retaliation.  Since 1998 , the EEOC has had rules in place that define what constitutes retaliation. Its proposed changes, not surprisingly , favor employees, greatly expanding the definition of retaliation. Employers should be aware of these rules, as violating them could lead to fines or lawsuits.  The EEOC’s proposed rule change...

For employers with a 24/7 workforce the question sometimes arises as to how to pay those employees that work the shifts where daylight savings time starts and ends. If employees work a typical 11:00p.m. to 7:00a.m. shift, but that shift is either cut short, as it was on this past weekend, by turning the clocks forward an hour at 2:00a.m., do you still have to pay them for the eight hour shift? After all, it wasn’t their fault that they did not work a full eight hours; there weren’t eight hours to work! Conversely, in the Fall, when the clocks are turned back an hour, are employees entitled to overtime for that extra hour that they work? Of course, the answer is that it depends! The FLSA and State wage and hour laws only require that hourly (non-exempt) receive pay for the actual hours that they work. So employers do not have to pay their non-exempt workers assigned to the night shift for the hour that we all “lose” when the clocks turn forward. Conversely, those same employees are...

Earlier this week, the Seventh Circuit Court of Appeals had occasion to examine whether the plaintiff met the required burden of proof in her federal lawsuit alleging employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 prohibiting workplace discrimination. In Boston v. U.S. Steel Corporation , the Seventh Circuit upheld the lower court’s grant of summary judgment in favor of the employer.  The plaintiff, Carla Boston, worked at U.S. Steel for eighteen years before she was laid off in December 2008, along with a number of other employees.  While on lay off status, Boston remained eligible to bid on posted positions for which she was qualified.  Between September 2010 and January 2012, Boston was awarded, and eventually disqualified from, three different clerical positions.  On April 10, 2012, Boston filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging that she was laid off on January ...

Bridgeview Bank Grp. v. Meyer , a recent, unpublished case coming out of the Illinois Appellate Court for the First District, reminds employers of just how important it is to take prompt and diligent action when an employee leaves and a restrictive covenant is in place.  In that case, plaintiff-bank sought a temporary restraining order after its former senior vice president allegedly violated a restrictive covenant contained in its employment agreement.  The agreement temporarily prohibited the employee from competing or soliciting the bank’s customers and employees.  Plaintiff-bank claimed that “in the course of reviewing its files,” the bank discovered that the employee “contacted customers of [the bank], divulged confidential information, and made disparaging remarks about” the bank, causing it irreparable harm.   Bridgeview Bank Grp. v. Meyer , 2016 IL App (1st) 160042, ¶ 3.  The court ultimately denied the bank’s request for a temporary restraining order, ...

For eligible employees with a serious medical condition or with a family member with such, an FMLA leave can ease their minds about their job while they take time to address medical issues. On the other hand, employers know that a FMLA leave is one of the easiest ways for their employees to avoid work over a long period of time. It remains one of the most common sources of employer frustration because it is difficult to refute an employee’s need to be off of work when his or her doctor is saying otherwise. Strict enforcement of FMLA policies and procedures can help curb abuse. Here are eight procedures that every employer should implement, whether in response to a request for continuous or intermittent FMLA leave: 1. Require a timely physician certification.  The FMLA and its regulations do not require that a physician certify the need for a leave, but employers should in every instance, even the obvious ones, to ensure a uniform practice in the workplace.  2. Any v...

In Crowley v. Watson , 2016 IL App (1st) 142847 (March 2, 2016) Cook Co., 3d Div. (LAVIN the court upheld a judgment against Chicago State University which included a punitive damage award in the amount of two million dollars.  The plaintiff, an attorney for the University, alleged he was terminated because he reported illegal conduct by the University to the Illinois Attorney General (Whistle Blower Protection 5 ILCS 430/15-5 et seq.) and because he released certain “FOIA documents” as required by law.  The University claimed the Plaintiff and the President merely had a disagreement about release of the FOIA documents and that the Plaintiff was terminated for misuse of University resources and mismanagement following an independent audit of a department he administered. The jury returned a judgment for the Plaintiff after 30 minutes of deliberation.  In addition to the punitive damage award the Plaintiff was also awarded double back pay of $960,000, pre-judgment int...

National Employee Appreciation Day is observed annually on the first Friday in March.  Today is a good day to pause and consider the value and importance of appreciating the people who make your organization successful. Employees are one of your greatest assets. Recognition and appreciation are powerful motivators in the workplace and increase employee job satisfaction.   Some great ways to show your employees appreciation include: Thank-you note – when a job is well done, a heart-felt, handwritten thank-you means more than an e-mail or slap on the back. Team effort celebration – when the team works together and makes it happen, reward employees with an office pizza, casual dress down day or even close early. Employee of the Month – recognize special efforts and accomplishments in workplace newsletter or on website. Recognition - employees actually value recognition even more than a reward or gift so be generous in your acknowledgement of employee contributions to pos...

Authored by Julie Tappendorf and originally posted on her blog for Ancel Glink covering a variety of local government issues. In Homoky v. Ogden (7th Cir. 2016), the Seventh Circuit Court of Appeals recently dealt with the "Garrity Rule" which states that incriminating answers given during any examination of a public employee during an internal investigation of the employee’s official conduct cannot be used against him in a criminal proceeding.  The Hobart Police Department was investigating official misconduct allegations against Officer Homoky and as part of the investigation, demanded that Homoky submit to a voice stress test. The Department informed Homoky it would not use the results in any criminal proceeding, invoking the Garrity Rule. Homoky refused to take the test, however, and the Department ultimately terminated him. He sued, claiming various due process and other constitutional violations, including a violation of his Fifth Amendment rights. The Se...

As evidence of its continued initiative to address gender issues in the workplace, the EEOC filed two lawsuits this week on behalf of employees alleging discrimination based on gender orientation. According to the EEOC the federal agency's Philadelphia District Office filed suit against Scott Medical Health Center, and, in a separate suit, against Pallet Companies, dba IFCO Systems NA. While it has prosected these types of claims at the Agency level for years, these are the first lawsuits filed in courts where it claims that employers have violated Title VII’s gender discrimination prohibition when the alleged actions were based on gender orientation. In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee's manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex ...

Employers who plan to conduct layoffs should be aware of the WARN Act. Short for the Worker Adjustment and Retraining Notification Act, the WARN Act requires employers to provide advance notice of mass layoffs to a number of people. Failure to provide this notice could subject an employer to harsh penalties.  Both the federal government and the State of Illinois have passed WARN Acts. The Illinois WARN Act is essentially the same as the federal version except that it applies in more circumstances. The Act applies to any private-sector employer with at least 75 full-time employees who will conduct a plant closing or a mass layoff. The Act considers a mass layoff to be firing or relocating 1/3 of full-time workers in a 30-day period.  The Act requires an employer to provide 60 days of advance notice of a mass layoff to: 1) the employees who will be laid off, 2) the employees’ union representatives, 3) the Illinois Department of Commerce and Economic Opportunity, and 4) ...