The Workplace Report with Ancel Glink

We’ve talked about Milliannials wanting work-life balance with their careers in a previous article, but here’s something that might come to people as a bit unintuitive. Millennials want to see more than just a promise of “good pay” when looking for a job. This is important to note because Millennials will account for more than half of the work force in 2025 and their aim is not the same as other generations. It’s not just about the promise of money anymore, it’s the promise of change. 1. Millennials want transparency. The word gets tossed around a lot, along with words like “bottom line” and “gluten free”, but there’s a reason to that. There’s no need to wax poetic with Millennials because they want to know more about how the company will use technology, their resources and their talent. If they feel as if they are being manipulated by management or are not fulfilled with their daily tasks, they will simply leave their job.  A survey on global perspectives reported that 29...

Employers already know that FMLA, ADA, Worker’s Compensation and a handful of other laws can collide in a dangerous intersection of employment rights, requiring employers to carefully examine employee eligibility under each.   The 3 rd Circuit Court of Appeals is about to decide whether this analysis gets trickier. In Capps v. Mondelez Global, LLC, the plaintiff suffered from a degenerative hip joint disease which led him to apply for intermittent FMLA leave when the condition would “flare-up”. The employer granted the leave. In February 2014, the plaintiff called in sick, utilizing FMLA time for one of these flare-ups. Later, the employer received information anonymously that the plaintiff was actually under arrest during that same time period for DUI. As a result, the company discharged plaintiff for  FMLA abuse. The plaintiff sued not only for violation of his rights under the FMLA, but also the ADA on the theory that if he was  not eligible for FMLA leave on...

Many of you might have heard of the new augmented-reality game, Pokémon Go, but have you considered how such augmented-reality games might impact the workplace?  Pokémon Go is a free, location-based game that allows mobile phone users to “catch” small creatures in their physical environment, using the phone’s camera and GPS.  The enormously popular game was released on July 6, 2016, and has been downloaded by more than 75 million people worldwide.  According to a recent article published by Reuters Legal, the game has already caused a spike in lateness as well as safety and productivity issues. The article reports that augmented-reality games are likely here to stay and that “companies should move now to update workplace policies and ensure consistent enforcement while securing facilities, warehouses and potentially dangerous worksites against Pokémon hunters.”    Boeing Company and a Massachusetts hospital have already set an example by banning the game an...

I read an article in the New York Times a few days ago about the Roger Ailes-Gretchen Carlson sexual harassment lawsuit , and the allegations that are coming out are pretty shocking. It seems that a pervasive culture of sexual harassment existed at Fox News, with a number of female employees alleging that they were propositioned for sexual favors and retaliated against if they said no. It will be interesting to see if the network can continue to attract talented female employees in light of these allegations.   One person who will not be working at the network is Roger Ailes. The sexual harassment allegations apparently had some truth behind them, and Ailes, the network’s founder, has been forced to step down. I reviewed the complaint filed by Gretchen Carlson , and here are some things that employers can learn from it: 1. A “he-said” “she-said” case can be dangerous. It seems like a lot of the evidence in Carlson’s lawsuit will come from her own testimony. Many emplo...

Although not many employers in the nation are federal contractors, when an Executive Order issues  regulations affecting contractors, and when the Department of Labor adopts them, it reflects an undeniable social trend.    This summer. the DOL’s Office of Federal Contract Compliance Programs (OFCCP) adopted a final rule updating the guidelines on sex discrimination for federal contractors by including sexual orientation and gender identity as protected classes. The revised rule applies to federal contractors and subcontractors with contracts totaling $10,000 or more over a 12-month period, unless they are otherwise exempt. The guidelines also contain expanded definitions of sex discrimination and sexual harassment by including pregnancy, childbirth or related medical conditions, gender identity, transgender status, and sex stereotyping in the definition of “sex”. The guidelines also expanded the term “harassment based on sex” to include harassment based on gender...

During 4th of July celebrations a couple of weeks ago, many people had a chance to ponder the meaning of freedom. Most people would agree that freedom includes the right to free speech, the right to practice whatever religion you please, and the right to express yourself. Does freedom also include the right to be free from answering emails at 8 p.m? According to the French, it does. As part of a series of labor reforms, the French Parliament has proposed a law that would give employees the right not to answer emails outside of work. The law would require employers with more than 50 employees to designate a period during the day when employees would not be required to send or receive emails. The law, if passed, would take effect in January 2017.  “All the studies show there is far more work-related stress today than there used to be, and that the stress is constant,” a French member of parliament told the BBC . “Employees physically leave the office, but they do not leave t...

Earlier this week, the EEOC reported that it has charged Rent-A-Center with federal civil rights violations, after the company allegedly discharged an employee because she is transgender.  Rent-A-Center, an international company with over 4,285 stores, which leases furniture, electronics, appliances and computers, employed Julianne Bowman at its Rantoul, Illinois store.  According to Julianne, the company’s supervisors disapproved of her gender transition and thereby found justification to fire her.  Title VII of the Civil Rights Act of 1964 prohibits sex discrimination in the workplace and the EEOC has ruled that discriminating against employees or applicants based on their transgender status, gender identity and/or because that person has or intends to make a transition, falls within the purview of Title VII.   EEOC’s statement claims that it filed suit after the agency was unable to reach a pre-litigation settlement through its conciliation process.   Jo...

Rarely do discharged employees believe that the reasons given for their termination are genuine. Maybe naturally so, they are angry and hurt and generally feel that their discharge was unfair. This sometimes leads to the discharged employee thinking that not only is their termination unfair, but probably unlawful as well, and they start connecting events or circumstances which may not be connected at all.  Such was the case in the City of Quincy in 2013 when the City was faced with a large budget deficit. Like many employers, it looked at a number of ways to both increase revenues and reduce costs. Being a municipality, it looked at increasing efficiencies in City services, including privatizing garbage and recycling pick up, along with continuing to consolidate jobs and reduce its workforce. In the summer of 2013, the idea of privatizing refuse removal was discussed by the City Council, although it did not vote to seek proposals for that function.  Plaintiff’s department...

During 4th of July celebrations a couple of weeks ago, many people had a chance to ponder the meaning of freedom. Most people would agree that freedom includes the right to free speech, the right to practice whatever religion you please, and the right to express yourself. Does freedom also include the right to be free from answering emails at 8 p.m? According to the French, it does. As part of a series of labor reforms, the French Parliament has proposed a law that would give employees the right not to answer emails outside of work. The law would require employers with more than 50 employees to designate a period during the day when employees would not be required to send or receive emails. The law, if passed, would take effect in January 2017.  “All the studies show there is far more work-related stress today than there used to be, and that the stress is constant,” a French member of parliament told the BBC . “Employees physically leave the office, but they do not leave...

New proposed regulations were issued by the IRS on July 8, 2016 regarding the effect on ACA affordability rules of opt-out or “cash-in-lieu” payments by employers to employees.  Opt-out arrangements are those employer benefit provisions that offer employees cash payments in lieu of insurance coverage; they are especially beneficial to both the employer and the employee when the employee is covered as a dependent by his or her spouse’s insurance coverage and therefore does not need the employer’s coverage.  For the employer, the cash-in-lieu payments are often much less than employer premium payments; for the employee, he or she is not required to pay for unneeded coverage. The proposed regulations now distinguish among “unconditional”, “conditional”, and “eligible” opt-out arrangements.  An unconditional opt-out arrangement is one that is not conditioned on any requirement other than the requirement that the employee waive coverage.  A conditional arrangement is on...

In one of the more closely watched transgender rights cases in the nation, the Virginia School District that prohibited an assigned female student who lives as male from using the men’s bathroom at school, is asking the Supreme Court to overturn an injunction against their rule. As readers may recall, the Gloucester County School District adopted a rule that students must use the restroom that aligns with their assigned gender at birth. This rule issued after Gavin Grimm, who was assigned female at birth but lives as a male, demanded that he be allowed to use the boys’ restroom at school. As a result of a lawsuit filed on Gavin’s behalf, the 4th Circuit Court of Appeals sided with Grimm and enjoined the School District from enforcing the rule, thereby allowing Gavin and others the ability to use the restroom that aligns with their affirmed or identified gender. The School District has appealed the case to the U.S. Supreme Court but this week asked Chief Justice John Roberts to...

After August 12, 2016, Employers may have a tougher time conducting post accident drug testing. That’s the effective date of OSHA’s revised regulations on reporting accidents in the workplace.  According to OSHA, the new regulations are designed to encourage employees to report their workplace accidents and injuries and to deter intimidation or threats of reprisal for those reports. One such threat or intimidation, according to OSHA, is post-accident drug testing of employees. Simply put, OSHA believes that some employees won’t report workplace injuries for fear of being drug tested.  Although a prohibition on this type of drug testing is not specifically contained in the new regulations, OSHA’s commentary accompanying the final rule clearly states its position on post-accident testing policies. According to the agency: . . .the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who re...

Are the rules in your employee handbook clear? Do your employees understand what they can and cannot do? A recent case showed that having unclear workplace rules may be illegal because they stifle employees’ protected concerted activities.  In the case, the NLRB found that a number of rules in T-Mobile’s employee handbook were ambiguous, overly broad, and could potentially discourage employees from unionizing or engaging in protected concerted activity. The National Labor Relations Act (NLRA) makes it illegal for employers to discourage employees from unionizing or prohibiting employees from discussing unionization with other employees. Even rules which might discourage employees from discussing unionization or just terms and conditions of employment violate the NLRA.  One of the rules that the NLRB found to be illegal stated that employees should “maintain a positive work environment by communicating in a manner conducive to effective working relationships.” The NLR...

Law firms, like lots of other employers, are trying to figure out how to deal with Millennials. Admittedly, that’s not surprising because understanding between generations isn’t easy. How will a generation that is stigmatized by stereotypes, like being lazy and not buying houses because of our student loans, affect workplace culture, especially the demanding environment of a law firm?  Initially, the time of new workers wanting to establish themselves in a company or firm might be going to way of compact disks. Last year, Forbes reported that 72% of Millennials wanted to be their own boss and that 88% wanted to collaborate instead of compete. The times of not sharing your law outlines and begrudgingly celebrating your colleague’s new client are coming to an end. But, while this may seem like a stark variation to the law industry, it is also important to know the zeitgeist instead of ignoring it. Some law firms are working with the notion that Millennial lawyers want to be...

At the end of last month, the U.S. Equal Employment Opportunity Commission (EEOC) reported that IFCO Systems, a pallet supply company, is to pay more than $200,000 to settle charges that the company discriminated against a lesbian employee at its Baltimore facility.  The EEOC alleged that the employee was repeatedly harassed by her superior because of her sexual orientation.  Some of the numerous comments included statements such as, "I want to turn you back into a woman" and "You would look good in a dress".  This is one of the EEOC’s first lawsuits alleging sex bias based on sexual orientation. David Lopez, EEOC General Counsel, stated that "This consent decree marks EEOC's first resolution of a suit challenging discrimination based on sexual orientation under Title VII.”  He went on to say, "EEOC is committed to ensuring that individuals are not subjected to discriminatory treatment in workplaces based on their sexual orientation and looks forw...

The City of Bloomington sought to reduce its sick leave buyback program for new firefighter hires from 100% to 50% buyback.  Under the buyback program firefighters with accrued sick leave at the time of retirement have the accumulated sick leave, up to 1800 hours, cashed out 100% by the City and the proceeds placed in a retirement health savings account to pay the firefighter’s health insurance costs during retirement.  The City proposal only affected employees hired after June 17, 2013. To offset the reduction in buyback for new hires, the City also offered  a onetime payment of $1,000 to all firefighters employed as of June 17, 2013.   The Union sought to maintain the status quo. The dispute went to arbitration.  The arbitrator ruled in favor of the City’s position.  The Arbitrator stated “this case …mainly turns upon how much weight, if any, must be given to the City’s projection that it faces a $37,600,000 shortfall in its firefighters’ pension lia...

A Chicago police officer was recently fired after a woman with whom he was drinking used the officer’s gun to shoot herself. After responding to an altercation between the woman and her boyfriend, the officer drove the woman home because she looked, in his words, “distraught.” On the way home, the woman and the officer decided to purchase a bottle of wine, and the officer, still on duty and in his uniform, went into a liquor store and bought a bottle of wine for the woman.  After the officer’s shift ended, the woman called the officer and invited him over for some drinks. The officer brought his gun with him, which was loaded, and, after having a few drinks, placed it on the floor of the woman’s house. When the officer went to the bathroom, the woman, who suffered from bipolar disorder and was not taking her medication, shot herself with the gun.  The police superintendant claimed that the officer’s conduct violated police department rules, and requested that the off...

On June 27, Senior District Court Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas issued an injunction barring the implementation of “any and all aspects” of the U.S. Department of Labor’s Persuader Advice Exemption Rule pending a final resolution of the merits of the case.   National Federation of Independent Business, et al. v. Perez (N.D. Tex., June 27, 2016).  The ruling comes five days after the U.S. District Court for the District of Minnesota declined to issue an injunction against implementation of the Persuader Rule, even though the court determined that the plaintiffs in that case had “a strong likelihood of success” on the merits of their claim that the Rule is contrary to the plain meaning of the Labor-Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. §401, et seq ., the statute that the Rule purports to enforce.   Labnet, Inc., et al. v. United States Department of Labor, et al ., (D. Minn., June 22, 2016). S...