The Workplace Report with Ancel Glink

Over the past few years, some of the contracts that major league baseball players have received are mind-boggling: $252 million to Alex Rodriguez, $217 million to David Price, and $210 million to Max Scherzer, to name a few. Therefore, it might come as a surprise that major league baseball is facing a lawsuit claiming that they pay certain players too little.  The lawsuit alleges that minor league baseball players are being paid below minimum wage and are not receiving overtime pay, in violation of the Fair Labor Standards Act (FLSA). The FLSA requires employers to pay employees at least $7.25 an hour, although some states have raised the minimum wage above this. Certain employees are exempt from this requirement, but they must make at least $47,476 and work in managerial or executive positions or work in specific industries like agriculture or domestic service . The FLSA also requires employers to pay employees 1.5 times their hourly wage for each hour of overtime (i.e. mor...

Earlier this week, the U.S. Equal Employment Opportunity Commission (EEOC), announced a $250,000 settlement in a race and national origin discrimination and retaliation lawsuit against American Casing & Equipment, Inc., a North Dakota oilfield service company.  According to the EEOC’s lawsuit, Matthew Clark, a Filipino-American, worked for American Casing & Equipment as a laborer on the “rat hole crew” responsible for cutting, welding and putting pipes in the ground.   Shortly after he started the job, Clark alleged he was harassed by a white manager because of his race and national origin and subjected to racial and ethnic slurs.  Clark lodged a complaint with the company’s safety manager about the harassment and was fired. Clark alleges he was fired in retaliation for his opposition to the workplace abuse in violation of Title VII of the Civil Rights Act of 1964.   The EEOC filed suit in the U.S. District Court for the District of North Dakota after pr...

On Monday, the Supreme Court held that the limitation period for constructive discharge claims begin after an employee gives notice of his or her resignation, not the effective date of the constructive discharge.  The controversy arose when Marvin Green, an employee of the United States Postal Service, complained that he was not promoted because he was black, while Green’s supervisors accused him of intentionally delaying the mail.  The Postal Service and Green entered into an agreement on December 16, 2009; the Postal Service agreed not to pursue criminal charges against Green, and Green agreed to either retire or to take a demotion in a remote area.  On February 9, 2010, Green submitted his resignation paperwork.   Green v. Brennan , No. 14-613, 2016 WL 2945236 (U.S. May 23, 2016). Under relevant law, a plaintiff working or applying to work in the federal sector, alleging discrimination or retaliation in violation of Title VII of the Civil Rights Act of 1964, ...

In the light of the Department of Labor’s new regulations increasing the salary threshold for exempt employees, employers have a good deal of work ahead of them to meet the December 1st effective date.  Remember that exempt employees are not entitled to overtime, but non-exempt employees must be paid at time and one half their regular hourly rates for all hours worked over 40 in a workweek.  The new regulations increase the salary threshold from $455 per week or $23,660 annually to $913 per week or $47,476 annually.  Although the new regulation goes into effect on December 1, 2016, don’t delay in preparing.  Here’s our to five actions for employers to achieve compliance with the new overtime rules: 1.) Renew all of your exempt employees:   We recommend that our clients regularly review the status of their exempt employees to make sure that they really should be considered exempt.  Typically this involves taking a close look at those considered to be “...

On June 1, a new law will be taking effect that local government employers should be aware of. The law requires them to disclose severance agreements when they are requested pursuant to the Freedom of Information Act.   The Freedom of Information Act (FOIA) provides the public with the right to request access to government records. Once a governmental body receives a FOIA request, it has 5 business days to either grant or deny the request. If complying with the FOIA request will take a lot of time or be particularly difficult, the governmental body may request a 5 business day extension for time to comply with the request. While the Act favors disclosure of public records, it does permit local governments to withhold certain records in some circumstances.  Severance agreements, however, are no longer among the records which may be withheld. The Act defines a severance agreement as an “agreement between any public body and its employee for the employee’s resignation i...

Experience has shown that the most effective weapon against workplace sexual harassment is prevention.  The burden of preventing sexual harassment rests with the employer.  Employers are required by law to take reasonable steps to prevent and address harassment in the workplace. Some suggested tips include: Develop an anti-harassment policy together with employees, managers and union representatives. Communicate the policy and complaint procedure to all employees and managers. Ensure that all managers and supervisors understand their responsibility to provide a workplace free of harassment. Make sure all employees understand the anti-harassment policy and complaint procedures including new and long-term employees. Seasonal employees should also be informed accordingly. Promptly investigate and address all complaints of harassment. Having an anti-harassment policy does not mean there will be no harassment complaints. However, being proactive and taking these sugges...

Although the number of transgender individuals in the U.S. is relatively small, the topic remains huge. It is definitely the year when transgender rights are front and center in the nation and in the workplace. Still, many labor under misconceptions about transgender individuals and their rights in the workplace. Here are the top five misconceptions: 1. Transgender rights only apply to individuals who have undergone reassignment surgery. One aspect in the demystification of transgender individuals and rights is understanding what it means to be transgender. The word transgender is an umbrella term for people who identify with the gender that does not conform to the one assigned to them at birth. This may mean that a transgender person has undergone or is undergoing gender reassignment surgery, or it may mean that a person is simply living as the gender with which they identify without surgical reassignment.  2. If co-workers are uncomfortable with a transgender co-work...

After what seems to employers like a near eternity of waiting, the DOL issued its final overtime rules today. There weren’t any surprises. With an effective date of December 1, 2016, the main changes to the rules which affect white collar exemptions and had not changed since 2004, are as follows: 1. Salary Threshold. As employers know, the test to determine white collar exemptions has two parts: the salary basis test and the duties test. The new rules increase the minimum salary to meet the first part of the test to $47,476 annually or $913 a week. This is not as high as the approximately $52,000 that was included in the  recommended rules. Nevertheless, it is about double what the current minimum salary is required to meet the salary basis test for exempt status. Some estimate that the new threshold will result in about 30% more of the workforce becoming eligible for overtime. 2. Duties Test. Fortunately for small employers especially, the DOL made no changes to the...

Last Wednesday, President Obama signed the Defend Trade Secrets Act into law. The law allows employers to sue ex-employees and other individuals whom they believe have stolen trade secrets in federal court. As explained in more detail below, the law may require employers to revise non-compete agreements and employee handbooks.  A trade secret is a secret formula or process that a business uses to create a product. Perhaps the most famous trade secret is the formula for Coca-Cola. Coca-Cola has kept the recipe for its iconic drink secret for over a century. Predictably, trade secret theft is a major concern for companies, as their trade secrets are often one of their most valuable assets. Therefore, many employers require their employees to sign contracts stating that if they leave the company, they are not allowed to disclose any trade secret they learned as an employee. Employers are already permitted to sue ex-employees, or anyone else, who steals a trade secret and us...

Two forms pursuant to the Public Safety Employee Benefits Act (PSEBA) are now being sent to all units of local government in Illinois.  The forms are also available on the website of the Commission on Government Forecasting and Accountability (COGFA) .   Under Section 17 of PSEBA, COGFA is required to collect data relating to the cost of health insurance required by PSEBA to be provided to former police officers, firefighters, and correctional officers who qualify for PSEBA catastrophic injury insurance benefits.  While the purpose of the forms is to collect data for State use, the forms also will serve as a source of data for units of local government that are seeking information regarding statutorily mandated offsets to the cost of providing catastrophic injury health insurance benefits. The first of the two forms is the PSEBA “Recipient Reporting Form”.  It is to be distributed by local governments to PSEBA recipients.  It asks a number of question...

In Roberts v. Columbia College Chicago , Joseph Roberts, a college professor filed a federal lawsuit against his former employer arising from his termination. According to Columbia College, Professor Roberts plagiarized several chapters in a textbook deemed to be an egregious violation of academic integrity standards. Roberts alleged that Columbia’s termination of his employment constituted unlawful age discrimination.   As we have reported before, the Age Discrimination in Employment Act (“ADEA”) makes it unlawful for an employer to refuse to hire or otherwise discriminate against an individual “ because of such individual’s age .” The ADEA’s protection extends to individuals who are 40 years of age or older.   Here, the provost of Columbia of College had the authority to terminate tenured faculty members. After being informed of the suspected plagiarism, the provost conducted her own investigation and decided to terminate Professor Roberts on that basis.  I...

The intersection of FMLA, ADA, Worker’s Compensation and other employer granted benefits sometimes result in a confusing morass of issues for employers dealing with a worker with a serious injury or illness. Determining whether or how much leave is appropriate can be a frustrating guessing game that we regularly address these issues on this site.  Earlier this week, the EEOC itself took a stab at the specific subject and issued guidelines on when a leave of absence is a reasonable accommodation. In this publication it focuses specifically on its position that a request for a leave of absence for medical reasons should be treated generally as a request for a reasonable accommodation, triggering the obligation of the employer to engage in the interactive process mandated by the ADA.  Of course whether a leave of absence is, in fact, a reasonable accommodation can only be decided on a case by case basis, but the EEOC opined on the following scenarios: A leave of abse...

It seems like only yesterday that Caitlyn Jenner made her debut on television and the cover of Vanity Fair. A scant year later, North Carolina has put itself on center stage over issues of who can use which gender’s restroom. Lawsuits were filed by both the U.S. Department of Justice, seeking to stop enforcement of the state law requiring individuals to use the bathroom that correlates to the gender on their birth certificate, and the State of North Carolina’s secretary of public safety claiming that the DOJ was overreaching when it warned that the state law violates the Civil Rights Act of 1964. The issue is likely to be ultimately decided by the Supreme Court, costing both parties hundreds of thousands of dollars to litigate. As controversial as this law is in North Carolina and other states, it is just the opposite from a legal standpoint in Illinois, where the Illinois Human Rights Act prohibits discrimination based on gender identity. Despite that fact, people in general main...

The U.S. Department of Labor recently released a guide on the Family and Medical Leave Act (FMLA), and it is pretty comprehensive. You can access it by clicking here,. Employers should take a look at it, as it provides a good explanation of the FMLA. Some important reminders for employers that the guide discusses are as follows: Employers to whom the FMLA applies must hang a poster explaining an employee’s FMLA rights. A sample of such a poster is provided on p. 12 of the guide .  If an employee seeks to take FMLA leave, he must provide his or her employer with notice of the leave and the reasons for it. An employee must provide notice of the reasons for his or her leave. This notice can be oral or written, and should be done in the way that an employer requires employees to provide notice of time off.  An employee is only eligible for FMLA leave if he or she has worked for 12 months and at least 1,250 hours during that 12-month period.  The FMLA allows an employe...

In the never ending and ever evolving saga of transgender restroom facilities issues, there has been yet another new development last week.  The U.S. Department of Justice (“DOJ”) has notified North Carolina’s governor and its university system leaders that the state’s new transgender law violates the U.S. Civil Rights Act. The North Carolina law, which has recently been making headlines, requires that individuals use bathrooms that correspond with their biological sex.  The DOJ has requested that the North Carolina state leaders respond by May 9, 2016 and advise whether or not they will remedy the alleged violations of Title VII of the Civil Rights Act. This most recent DOJ action takes a very aggressive stance towards a state’s, and certainly by implication a local government’s ability to legislate the issue of transgender restroom and facility usage.  Specifically, the DOJ letters to the North Carolina officials stated, “Access to sex segregated restrooms and ...

Another victory for public employers in the on-going battle against employment discrimination lawsuits. Last week, in Wells v. Winnebago County, Illinois , the Seventh Circuit Court of Appeals upheld judgment in favor of Winnebago County in race and disability discrimination lawsuit filed by a County employee. The plaintiff, Barbara Wells worked as a “computer navigator” at the Winnebago County courthouse.  Plaintiff’s job was to help pro se litigants who came for assistance at the County’s “Legal Self-Help Center.”   Wells complained to her employer that many of the pro se litigants became abusive when she told them she was not a lawyer and could not act as their counselor. To deal with this situation, Wells requested that her employer create a barrier wall between her and the public similar to walls used in banks. The County declined her request and left her exposed to direct public contact. Wells alleged several other instance of discrimination including lack of access...

The catastrophic illness of an employee or a member of an employee’s family can bring out the kindness in their co-workers. Yes, for employees who are covered under FMLA, their employment and even continuation of their health insurance is protected. But what about pay continuation? If an employee doesn’t have sufficient benefit time saved to cover their absence, going without a pay check can add a great deal of additional stress to an already incredibly stressful situation.  This is where co-workers want to help. Why not allow other employees to donate some of their sick leave to the employee in need? It’s a win-win, right? Well, not exactly. It’s certainly a win for the employee who needs the pay during their time off. Donated sick leave provides financial relief as well as reducing the stress of worrying about how the bills will get paid. Donated sick leave is tangible evidence of the moral support that co-workers want to provide. That too can help to reduce the stress o...

Too often, employers think of “protected, concerted activity” as conduct that, in some way, directly relates to union activity.  In other words, conduct engaged in by union workers in such a way that it cannot be mistaken such as picketing, conducting union organizing campaigns or meeting to discuss collective bargaining strategies and issues.  In Staffing Network Holdings, LLC , the United States Court of Appeals For the Seventh Circuit was quick to remind employers that this is not necessarily the case. In Staffing Network Holdings, LLC the National Labor Relations Board held that non-union employees who were engaged in protected concerted activities are also protected by the National Labor Relations Act.  While this is not new, both the NLRB findings and the court’s affirmation of those findings are instructive.   In Staffing Network Holdings, LLC , the employee conduct in question was subtle.  The employees worked for Staffing Network Holdings, LLC...

Last week I discussed the Verizon strike , and what employers should and should not do when their employee are on strike. Staying on this subject, in this blog post I discuss some of the things that private sector employers can do to prevent their employees from forming unions in the first place.  While it is true that an employer cannot take negative action against an employee for joining a union or attempting to get others to join a union, an employer can make it more difficult for union organizers to get employees to join a union. For example, an employer can prohibit employees from engaging in union organizing during work time. If an employee is failing to get work done because he spends too much time attempting to organize other employees, the employer can take disciplinary action against that employee for inattention to duty or poor performance but not for engaging in union organizing. The employer should be sure to keep evidence that the employee was failing to do his j...

Originally posted by Erin Baker on the Municipal Minute, a blog edited by Julie Tappendorf of Ancel Glink, about topics of interest to local governments and others. You can access the Municipal Minute at http://municipalminute.ancelglink.com .  In a recent decision, an Illinois appellate court ruled against the City of Peoria, finding that an employee disciplinary report that was created prior to an adjudication did not fall within the FOIA exemptions. Peoria Journal Star v. Cty of Peoria, 2016IL App (3d) 140838 (April 18, 2016) . A newspaper and a crime reporter filed a FOIA request with the City of Peoria, seeking all special reports written by a Peoria Police Sergeant in 2013. The City produced a copy of one report, but withheld another report  written by the Sergeant, asserting that it was exempt under Section 7(1)(n) of FOIA.  Section 7(1)(n) provides an exemption for “records relating to a public body’s adjudication of employee grievances or disciplinary ca...