The Workplace Report with Ancel Glink

Recently, in Chaib v. GEO Group, Inc ., the Seventh Circuit Court of Appeals affirmed summary judgment for the employer in Title VII employment discrimination lawsuit filed in federal court. Specifically, the plaintiff, Nora Chaib, worked for GEO Group, Inc., a private company that managed a correctional facility for the State of Indiana.  She was fired for “unbecoming conduct” because she improperly extended her medical leave following a workplace injury. Plaintiff sued GEO Group under Title VII alleging discrimination on the basis of sex, race and national origin.  During her medical leave, Chaib’s employer became suspicious that she was malingering and hired an investigator to do video surveillance of her activities. Investigators videotaped Chaib driving her car and running errands around town while claiming to be incapable of  “normal activity including minimal exertion.”  Plaintiff could not dispute this evidence which ultimately proved fatal to her claims...

Can a public employee’s right to free speech protection be violated even if the employee wasn’t exercising that right? The Supreme Court said yes to that question in its decision yesterday in Heffernan v. City of Paterson, New Jersey . In that case, Plaintiff Jeffrey Heffernan was a police officer for the City of Paterson and assigned to the position of detective. Many acknowledge that not only do detectives generally earn more money than officers, but the assignment of detective carries with it a certain prestige. The Paterson chief of police, as well as Heffernan’s immediate supervisor, had been appointed by the City’s mayor, who was running for re-election against Heffernan’s friend, Lawrence Spagnola. Heffernan was not involved in Spagnola’s campaign. During the course of the  campaign, Heffernan was spotted by several officers picking up a Spagnola yard sign, which apparently he was doing as a favor for his mother. Heffernan’s actions were immediately reported to the ...

This past Friday, the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) issued new guidance and information in an effort to prevent workers from exposure to Zika virus.  The Zika virus is most commonly spread by infected mosquitoes; however, the virus can also be spread through sexual contact.  Common symptoms of the virus include red eye, rash, fever and joint pain.  Pregnant women can also pass the virus to their fetus, sometimes resulting in birth defects.  There is no vaccine to prevent this virus, nor is there any specific treatment once a person has become infected.   The new guidance encourages employers to take the following preventative measures to protect employees who work outdoors: Inform employees about their risks of exposure to the virus and ways to minimize exposure, such as wearing clothing that covers exposed skin;  Provide employees with insect repellants that contain E...

On April 13, 36,000 Verizon workers went on strike, making it one of the largest strikes in recent U.S. history. The strike has become increasingly contentious, with reports of sabotaged equipment and picketing workers calling for the boycott of Verizon products and services. In light of this strike, many employers may be wondering what they can do if their workers strike.  While state laws vary, federal law applies to private sector employers throughout the country, and prohibits them from discriminating against an employee for joining or attempting to join a union. It does not prohibit an employer from voicing its opinions as to why employees should not join a union or go on strike. It also does not prevent an employer from prohibiting union-organizing activities during work time.  An employer cannot fire a striking employee just because that employee is on strike or is picketing. The employer can fire a striking employee if that employee violates a company policy...

Recently, in Susan Kuttner v. John Zaruba, et al . the Seventh Circuit Court of Appeals affirmed summary judgment in favor of the employer.  Plaintiff, Susan Kuttner was fired from her job as a DuPage County deputy sheriff after her employer learned that she had wore her uniform and badge while trying to collect on a loan for her boyfriend in violation of multiple departmental regulations.  In discipline proceedings, Kuttner ultimately admitted to violating two work rules: 1) one prohibiting “conduct unbecoming” an officer, and 2) another prohibiting the improper wearing of the uniform. The Merit Commission determined that Kuttner’s conduct was serious enough to warrant discharge.  She was fired on February 24, 2010. Two weeks later, Kuttner filed a charge of discrimination with the EEOC alleging that her employer had discriminated against her on the basis of sex.  After the EEOC declined action and gave her permission to sue in federal court, Kuttner filed suit...

When are employee statements outrageous enough or so false that they lose their protection as concerted activity?   It appears that the answer to that question is that they have to be well beyond technically true and made with malice. The 8th Circuit Court of Appeals ruled recently that an inference on posters created by Jimmy John’s workers that they are not allowed to call in sick and that customers might get sick from their sandwiches because they could be made by sick workers was not so misleading to result in workers losing their protections under the Labor Act. The Industrial Workers of the World had been trying to organize workers of a 10 store Jimmy John franchise without success. One rallying point for the union was the lack of paid sick leave for the workers and the sick leave policy in general which stated the following: Find your own replacement if you are not going to be at work. We do not allow people to simply call in sick! We require employees and mangers [s...

The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal labor laws, recently posted a summary of LGBT worker protections, which is available here . I encourage employers to take a look at this summary, because it does a good job of explaining how the EEOC will interpret and prosecute federal labor laws. It also contains links to useful information.  As we have explained , the EEOC has been interpreting federal labor laws to prohibit discrimination against employees due to their sexual orientation and gender identity.  They have been aggressively pursuing employers whom they feel are engaged in these activities, and collected a record $525 million last year from employers accused of violating federal labor laws.   Some noteworthy things from the EEOC summary include: Bathrooms: The EEOC’s position is that it is illegal to prohibit an employee from using a bathroom that corresponds to his or her gender identit...

In 2008 the ADA was amended to allow for many more conditions to meet the definition of disability under that Act. One of those conditions about which employers have worried would restrict their hiring criteria is obesity. Recently, the 8th Circuit, was the first appellate level court to rule that obesity alone is not a disability even under the expanded definition of such in the ADA. The defendant in Morriss v. BNSF Railway Co. had a company policy of not hiring applicants with a body mass index over 40. Despite that fact and the fact that the plaintiff, Morriss was morbidly obese, the company made him a conditional job offer as a machinist. He was sent for a medical exam pursuant to company policy.  The results of the exam revealed that Morriss was in good health and that his weight would not affect his ability to do the job. Thereafter, the company withdrew their job offer consistent with their body mass index policy.  Morris sued, alleging that the 2008 amendments...

For Illinois local governments, the Public Safety Employee Benefits Act (“PSEBA”) can be a particularly onerous statute.  The law requires that if a police officer or firefighter is “catastrophically” injured in the line of duty while responding to an emergency or when he  “reasonably” believes that he is responding to an emergency, he is entitled to have the employer pay the full cost of his health insurance (including family coverage if he has elected it) until he reaches the age for Medicare eligibility.  While PSEBA benefits are appropriate for police officers and firefighters who are truly catastrophically injured in the line of duty while responding to emergencies and who, as a result, are no longer able to work, they are extremely costly, usually unfunded and sometimes abused. For instance, many employees who are found to be eligible for the benefits also go on to work other full time jobs. Courts have generally ruled in favor of an expansive reading of eligibilit...

In April 2010, in the midst of recovery from the great recession of 2008, the U.S. Department of Labor issued new guidance on the use of unpaid interns in the private sector.  The guidance provided a six part test to determine whether or not the internship qualified as an educational exception to wage payment laws.  Failing the six part test causes an internship to be subject to pay for time spent in the program.  This six part test is also used for the definition of an intern found in the Illinois Human Rights Act.  The Act was amended effective January 1, 2015 to include interns as employees for purposes of sexual harassment coverage.  The six part test is: 1. The internship is similar to training which would be given in an educational environment; 2. The internship experience is for the benefit of the intern; 3. The intern does not displace regular employees, but works under close supervision.  4. The employer derives no immediate advanta...

Last week, California and New York passed legislation that will gradually raise the minimum wage in their states to $15/hr. The California law will increase the state’s minimum wage from $10/hr in 2016 to $10.50/hr in 2017 and to $11/hr in 2018. The minimum wage will increase $1/hr each year after that until 2022, although small businesses will not have to pay $15/hr until 2023. After 2022, the minimum wage will automatically increase based on the rate of inflation.  The New York law raises the minimum wage from $9/hr in 2016 to $11/hr for employees in New York City in 2017 to $13/hr in 2018 and $15/hr in 2019. The minimum wage will increase more slowly for employers in the rest of the state. New York’s law also provides for paid family leave, requiring employers to provide employees with 12 weeks of paid leave to care for an infant, a sick family member, or to help the family when someone is called into active military duty.  As we have discussed , there has been ...

Believe it or not, summer is almost here. Certainly, seasonal hiring is in full swing for many employers as students hurry to line up their summer jobs. Here are five reminders for employers as they hire on their summer staff: 1. Overtime It used to be that the FLSA and state wage and hour laws allowed employers who primarily provide recreation or amusement services were exempt from overtime obligations for seasonal staff. This meant that miniature golf parks, park districts and the like could hire summer staff at or around minimum wage to fill their extra needs without worry about overtime costs. Believe it or not, many employers remain unaware that in Illinois even seasonal employees are entitled to time and one-half pay for all hours worked over 40 in a work week.  2. Dress Code Let’s face it, many students have no idea how to dress for work. Add to that the fact that many summer jobs are outdoors or involve some sort of recreational activity, which call for m...

Recently, in Roberts and Hill v. City of Chicago , the Seventh Circuit Court of Appeals affirmed the lower court’s dismissal of plaintiffs’ federal employment claims. Plaintiffs Steven Hill and Sean Roberts filed suit in federal court against the City of Chicago alleging discrimination in employment under the Americans with Disabilities Act. The ADA prohibits discrimination against a qualified individual on the basis of disability in regard to job application procedures and hiring.   Plaintiffs are two African-American men who applied for firefighter positions with the Chicago Fire Department.  Plaintiffs were both members of a class action lawsuit ( Lewis v. City of Chicago ) brought by African-American applicants who were denied employment based on their examination scores. The class action contended that the City’s hiring process had an unjustified adverse impact on African-American applicants resulting in an order that the Chicago Fire Department (“CFD”) hire the firs...

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. 40,000 state employees are members of the AFSCME union, which in 2010 entered into a collective bargaining agreement with the state of Illinois. That agreement was effective 2008 - 2012. However, in 2010, AFSCME and the State agreed to modify the wage increase portion of the CBA to reduce the 4% increase that would have started on July 1, 2011 to a 2% increase for fiscal year 2012. A year after the CBA amendment, the State notified AFSCME that state appropriations for fiscal year 2012 were insufficient to implement the 2% salary increase.  AFSCME initiated a labor arbitration, which issued a ruling in favor of AFSCME. Specifically, the arbitrator directed the State to pay the wage increase based on the CBA provisions. The State appealed, and the case made its way to the Illinois Supreme Court, which i...

Employees of Dave & Buster’s, Inc. and Dave & Buster’s Entertainment, Inc., have brought a class action lawsuit against the corporation under Title I of the Employee Retirement Income Security Act of 1975 (ERISA)in a New York district court.  The class consists of over 10,000 employees who allege that their hours were involuntarily reduced by the corporation after the enactment of the Patient Protection and Affordable Care Act (ACA).  The class alleges that the reduction of hours resulted in either the loss of the corporation-sponsored ERISA health insurance plan or being presented with an inferior insurance plan.  The ACA, which became law in 2010, required that employers, with one hundred or more employees, provide affordable, minimum-value insurance for its full-time employees effective January 1, 2015.   The employees, employed in 72 stores across the United States, believe that Dave & Buster’s implemented a nationwide “effort in 2013 intended to...

Five prominent members of the U.S. Women’s Soccer Team recently filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that they have been the victims of gender-based pay discrimination. The women soccer players noted that although they have generated similar revenues as the men’s team, they have been paid about four times less than the men, despite the fact that they won the World Cup in 2015.  The complaint the women filed asks the EEOC to investigate whether the women have been paid less because of their gender. Before an employee can file a suit for discrimination based on gender, race, religion, or any other category protected by Title VII of the 1964 Civil Rights Act, he or she must first file a complaint with the EEOC.  In their complaint, the women contend that the U.S. Soccer Federation violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of gender. In support of these contentions, the wom...

The line between personal gripes and protected concerted activity seems to be moving again.  We have reported frequently over the past few years about NLRB findings of unfair labor practices (and subsequent court action affirming those findings) when employees used social media to express their dislike over wages, hours or other terms and conditions of employment. Although different than what was typically thought of – pre-social media – as concerted activity, where employees would get together and voice their common complaints, the NLRB routinely finds that these same type of exchanges on Facebook, etc. are also protected, even though members of the public might read them as well, because they are just another way for employees to provide mutual support and aid in expressing concerns about their jobs. Central to these findings though, was always the fact that two or more employees were involved in the exchange.  Now comes a case from the NLRB where it finds that a sole e...

The U.S. Supreme Court will likely require the Equal Employment Opportunity Commission (EEOC) pay $4.7 million in attorney fees to the attorneys who successfully defended a case alleging sex discrimination, in violation of Title VII.  Reuters Legal reported, “[d]uring Monday's oral argument, Justices Stephen Breyer and Sonia Sotomayor joined three of the conservative justices in signaling their agreement that CRST Van Expedited Inc definitively won the case, which allowed for the fee award, despite the EEOC's arguments that the matter was not technically finished.” The case originated in 2007, when the EEOC brought the action on behalf of 270 employees against their employer, a large, Iowa-base interstate trucking firm (CRST).  The U.S. District Court for the Northern District of Iowa barred the EEOC from seeking recovery for 67 claims, due to its failure to reasonably investigate or good faith conciliate.  In addition, the court granted the employer’s motion for att...