The Workplace Report with Ancel Glink

Last fall we discussed whether an employee could be fired for not being good looking enough . As a recent case shows , employees can also be fired for the opposite reason: being too hot.  Beauty really was a curse for a yoga instructor who worked at a Manhattan chiropractor’s office.  After working at the office for about a year, one of the owners of the chiropractic practice told the woman that his wife , who also was a co-owner of the business, might be jealous because she was “too cute.” A few months later, the owner’s wife fired the yoga instructor.  The yoga instructor filed suit against the employer, saying that her firing was illegal gender discrimination. The court, however, dismissed the suit, finding that it is not illegal gender discrimination to fire someone for being too good looking.  The court noted that in order for gender discrimination to exist, one gender must be treated differently than the other. So, had the wife fired all the good-l...

Let’s say that you have an employee who has always received stellar reviews – in fact was selected as employee of the year recently – but you just discovered that she has been violating the company’s overtime policy for years by not clocking out for lunch and claiming that she was directed to do so and worked at least part of her lunch period about 95% of the time and is now demanding payment. Let’s also say that in addition to this situation, she is also now asking for intermittent FMLA leave to manage her diabetes.  The overtime violation is pretty serious, but does the timing of discipline relative to her FMLA request just too risky? A company in Kansas thought not, and it’s now headed to trial. In Fritzler v. Royal Caribbean Cruises, Inc. , the plaintiff was the executive assistant to the manager of a call center. Claiming that her boss told her to be available even during her lunch break, the plaintiff stopped punching out for lunch and claimed later that her lunch was in...

The City of Chicago made two key amendments to its City Code addressing two of the hottest topics of 2016 – paid sick leave and transgender rights. First, the Chicago yesterday joined a number of cities and a handful of states in requiring that employers provide paid sick leave to their employees. Calling it “earned sick leave” Mayor Emmanual explained that the ordinance requires employers in the City to provide one hour of paid sick leave for every 40 hours of work by and employee, with a maximum of five paid sick days earned in a 12 month period. Additionally, employees can carry over a maximum of 2.5 sick days from one year to the next. The Paid Sick Leave ordinance provides this sick leave benefit for any employee who works 80 or more hours in a 120 day period and the ordinance applies to all employers regardless of the number of individuals they employ. Additionally, under the ordinance, employees may use their paid sick leave for their own illness, the illness of a famil...

According to a recent report from the U.S. Treasury Office of Economic Policy , 18 percent, or 30 million, of American workers are currently covered by non-compete agreements.  In addition, 37 percent of American workers have been subjected to a non-compete agreement at some point during their career.  These non-compete agreements are not only used to restrict senior executives or highly-skilled professionals, but also to restrict employees sometimes making less than $40,000 per year.  The report postulates the many detriments that non-compete agreements have on employees; such as confusion or lack of transparency, lack of bargaining power, and the inability to exchange knowledge and ideas which encourage economic growth.   On June 8, 2016, the Attorney General of the State of Illinois filed a complaint against Jimmy John’s, alleging that the company’s non-compete agreements violate the Consumer Fraud and Deceptive Practices Act.  The complaint asserts that...

To the employers reading this post, I have some advice: have policies in place that allow your employees to breastfeed. Frontier Airlines recently learned the dangers of not having such a policy. The airline made news when four of its female pilots filed a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal workplace laws.  The complaint claimed that after the pilots returned from maternity leave, the airline did not provide proper accommodations for the women to breastfeed and pump breastmilk. Three of the pilots claimed that they suffered breast tissue infections because they were not able to pump breast milk when they needed to do so. One pilot also claimed that she was disciplined for pumping breast milk on a plane.  Both federal and state law requires employers to provide their employees with an opportunity to breastfeed and/or pump breast milk. The Affordable Care Act (aka Obamacare) requires ...

Let’s say you have an employee with whom you have a written employment agreement, but that agreement does not include a written duration, commonly known as an at-will employee.  Let’s also say that you want to reduce the salary of the at-will employee.  Do you need the employee to agree to this?  The First District, Fourth Division Appellate Court of Illinois decided that when such an agreement exists, one with no fixed term of employment, an employer may modify the agreement as a condition of its continuance.  An employer does not need the employee to agree to any change in their employment agreement, and this applies to compensation terms.  However, while the employee does not have to agree to a modification, they still must accept it.  The difference between the two is that an employee does not have to say it’s okay to make a change to their agreement, but if they do not accept the change, that’s where there’s a problem.   In the First District...

The recent tragic events in Orlando, Florida serve as a reminder that often, evidence of forthcoming violence may start in the workplace.  In the case of the Orlando shooter, the subsequent investigation has revealed that the shooter made threatening and/or menacing statements at work about his ties to different terrorist organizations.  He is also reported to have made statements of support, at work, for the violent and extreme actions of others, such as the Boston bombing perpetrators.  Employers should be vigilant in situations such as these.  As has been stated over and over in media coverage since Sunday, identifying threats often comes from a co-worker, friend or relative reporting strange behavior.  Since people spend so much time at work, work is often where problems and violent tendencies first manifest themselves.  So what can you do to help safeguard your employees? Most importantly, we recommend to all of our clients that their personnel ma...

This post was originally authored by Jim Rock , an Ancel Glink attorney, on our sister blog, The Municipal Minute : In a fairly recent case, a federal district court in Illinois ruled that rectal administration of Diastat, an anti-seizure medication that is administered to patients with epilepsy during seizures, is not a reasonable accommodation under the Americans with Disabilities Act. U.S.  v. N.I.S.R.A., Case No. 12 C 7613  (N.D. Ill. 2016). The Northern Illinois Special Recreation Association had adopted a policy prohibiting its staff from administering Diastat.  Instead, staff are directed to follow the person’s seizure plan to the best of their ability and to call 911 in the event of a seizure. Parents of a participant who suffers from epilepsy complained that the policy discriminated against their child and that the administration of Diastat is a reasonable accommodation under the ADA.  The United States Attorney General sued NISRA, seeking a declara...

It is a well known fact that a healthier work force means lower insurance costs.  That’s good for employers.  The question has always been how to get healthier employees.  The answer is simple:  pay them.  And this is how employee wellness plans came into being. It all sounds so simple that it seems unthinkable that there could be an employer without a wellness plan.  The problem is that wellness plans were not clearly regulated.  The EEOC’s new regulation attempts to remedy this problem and clarify what is necessary for such plans to be compliant with the Americans with Disabilities Act (“ADA”). To be ADA compliant, wellness plans that require medical information and examinations must be voluntary, they must be made available to all employees, they must provide for reasonable accommodations, and employers must keep all medical information obtained confidential.  In addition to these requirements, the EEOC issued the new rule in order to ...

The House and Senate sent three bills to the Governor which if approved will impact local government employers. 1. SB 2896.  This Bill makes IMRF employers liable for one-half of annuitant repayments due IMRF where the city knowingly hires an IMRF annuitant and fails to notify IMRF of such hiring.   IMRF employers will need to alter their employment practices to include a determination as to an applicant’s current status with IMRF.  If the applicant is an IMRF annuitant, then the employer should notify IMRF to avoid any repayment liability. 2. HB 5684 is entitled The Local Government Wage Increase Transparency Act.  This Bill provides that employees under IMRF who began participation prior to January 1, 2011, may not receive a wage increase or lump sum payment if it makes the reportable monthly earnings 6% or more than the previous months reportable earnings, when such increase or payment is made during the final 12 months of employment, unless such p...

The District of Columbia became the latest place to pass a $15/hr minimum wage law, joining New York and California as states or territories to have adopted a $15/hr minimum wage law this year. Like New York and California’s law, D.C.’s will phase in a minimum wage of $15/hr over time, with $0.70 increases in the minimum wage each year until 2020, when the minimum wage will reach $15/hr. After that, the minimum wage will rise each year in accordance with the rate of inflation.  The $15/hr minimum wage in D.C. is more than double the current federal minimum wage of $7.25/hr, which is the minimum wage in Virginia, right outside D.C.’s borders. There is some fear that the minimum wage increase will cause jobs to leave D.C. for Virginia.  Despite these concerns, D.C’s decision represents a big win for organized labor and the $15/hr minimum wage movement. The $15/hr minimum wage, which has been advocated by both Bernie Sanders and Hillary Clinton , is expected to become...

On June 2, 2016, the 9th Circuit Court of Appeals found that the City of San Gabriel violated the Fair Labor Standards Act (FLSA) when it failed to include payments of unused portions of police officers’ medical, vision, and dental benefit allowances in calculating the employees’ regular rate of pay.  Flores v. City of San Gabriel, No. 14-56421, 2016 WL 3090782, at *2-3 (9th Cir. June 2, 2016).  This miscalculation resulted in a lower overtime rate and thus an underpayment of overtime compensation.  The Court found that the officers were entitled to liquidated damages for the City's FLSA violations.  The City’s Flexible Benefits Plan provided a designated monetary amount to each employee for the purchase of medical, vision, and dental benefits. All employees were required to use a portion of those funds to purchase vision and dental benefits; however the employee could refrain from purchasing medical benefits if that person provided proof of alternate medical co...

On Monday, June 6, 2016, the D.C. Office of Human Rights and the National LGBTQ Task Force issued a best practice guide to help employers ensure that their transgender employees are treated with respect and equality in the workplace.  This guide is in response to a recent survey that revealed that more than 90 percent of transgender have experienced discrimination in the workplace because of their gender identity.  Further, 47 percent of transgender have reported an adverse employment action because of their gender identity, such as being terminated or denied a promotion. The guide recommends the following 5 best practices for employers to follow within the workplace: 1. Maintain Confidentiality. Whether the employer learns of a person’s transgender status during the hiring process or after an employee seeks an accommodation, employers should keep the information confidential.   An employee’s transgender status should only be shared when necessary, such as d...

It is fairly well settled law, often referred to as the Garcetti rule after the case that established it, that employee speech is only protected if the employee speaks as a citizen or about an issue of public importance. While an employee does not speak as a citizen when he makes statements pursuant to his official duties, the Garcetti rule does not apply in the same way to a case involving speech related to scholarship or teaching. In the case of Brown v. Chicago Board of Education, decided last week by the 7th Circuit Court of Appeals, the teacher, Lincoln Brown, discovered students in his class passing notes containing the word n****r. He took the opportunity to give an impromptu lesson to the class of sixth graders about racial sensitivity. During the lesson, he used the “n-word”. The Board of Ed subsequently suspended him for five days for his use of the word. Teacher Brown sued, alleging among other things, that his words amounted to protected speech as they were part of h...

The U.S. Equal Employment Opportunity Commission (EEOC) announced this week that New Prime Trucking, Inc, one of the nation’s largest trucking companies, will pay over $3 million in settlement to a group of women who allege they were victims of the company’s unlawful discriminatory hiring policy.  According to the EEOC, the settlements followed a court order finding that the company violated Title VII of the Civil Rights Act of 1964 by discriminating against female truck driver applicants when it required that they be trained only by female trainers.   EEOC filed suit against the company based on a charge of discrimination filed by Deanna Roberts Clouse.  The lawsuit alleged that because Prime had very few female trainers, its same-sex trainer policy forced female trainees to wait extended periods of time (sometimes up to 18 months) for a female trainer to become available. The policy resulted in most female driver trainees being denied employment. In contrast, male ...

In Lewis v Epic Systtems Corp. No. 15-2997 (May 26, 2016) W.D. Wisc. the United States 7th Circuit Court of Appeals held that an employer mandated arbitration clause violated the right of employees to engage in collective action under section 7 of the National Labor Relations Act.  In this case the employer required employees to submit overtime and pay disputes arising under the Fair Labor Standards Act to arbitration.  Employees agreed to this arrangement by continuing to work for the employer.  The Plaintiff agreed to the arrangement, but later changed his mind and sought to enforce his FLSA rights in court. The Court, citing prior cases and National Labor Board decisions, stated that concerted and collective action protected under section 7 of the NLRA includes the right to bring class action lawsuits, or individual lawsuits supported by other employees or representative of other employees.  The court found that the Plaintiff’s attempt to litigation his FLSA...

In a recent Illinois Appellate Court case, Village of Bartonville v. Lopez , employers were reminded again of the importance of specificity when negotiating collective bargaining agreements, especially where the parties’ grievance procedure is concerned.  In Village of Bartonville , the contract language was not specific with regard to whether or not disciplinary action were subject to the parties’ grievance procedure or the exclusive jurisdiction of the Village’s Board of Fire and Police Commissioners (“BOFPC”).  This lack of specificity may ultimately lead to a second bite at the apple for a terminated police officer. In Village of Bartonville , the police chief filed a complaint with the BOFPC seeking the termination of a police officer who violated department policy by pointing his service weapon at a motorist during a traffic stop.  The Union sought to stop the BOFPC hearing by filing a complaint for declaratory judgment and injunctive relief wherein it alleged ...