The Workplace Report with Ancel Glink

Earlier this month, Governor Bruce Rauner signed into law a domestic workers bill of rights . The law provides domestic workers with minimum wage, at least one day off a week , meals, and protections from discrimination. It also prohibits domestic workers from being paid “an oppressive and unreasonable wage.” The law will go into effect on January 1, 2017. Prior to this law, domestic workers did not receive the same benefits as most other workers because they are excluded from the protection of federal employment statutes like the Fair Labor Standards Act (FLSA) , the National Labor Relations Act (NLRA) , and the regulations passed by the Occupational Safety and Health Administration (OSHA). Illinois joins California, Hawaii, New York, Massachusetts and Oregon in passing a domestic workers’ bill of rights.  This law comes into effect as domestic workers have increasingly pushed for more workplace protections. Last year, the U.S. Department of Labor changed regulations so...

Authored by Tiffany Nelson-Jaworski and originally posted on Julie Tappendorf's blog, Municipal Minute, for Ancel Glink covering a variety of local government issues. In June, we reported that Illinois H.B. 5684, the "The Local Government Wage Increase Transparency Act," had passed both the Illinois Senate and House, and had been sent to the Governor for signature. On July 28, 2016, Governor Rauner signed the bill into law, which is now known as P.A. 099-0646.  The new law prohibits certain wage increases or lump sum payments to a local government employee during the employee’s last 12 months of employment  unless  the increase or payment is disclosed and approved at a public meeting in open session of the employer governing body.  The law also amends the Open Meetings Act to require the public body to discuss compensation of individuals who fall within this category in open session – a significant change from the otherwise applicable OMA exemption that ...

The Obama administration encountered a small hitch in their plan to prevent gender identification discrimination in schools. A Texas federal district court has ruled in favor of a motion for preliminary injunction to enjoin enforcement of the guidelines filed by various states challenging school guidelines issued by the Departments of Justice and Education pertaining to transgender rights.   Back in May, the Departments issued a letter to schools throughout the country notifying school administrators that discrimination against transgender students violates the Title XI rights of transgender students for equal access in education. Schools were reminded to avoid discriminating against students who use restrooms that correspond to their gender identity and to put other accommodations in place.   The plaintiffs in this case raise two significant arguments. The first is that the legislative intent behind Title IX was concerned with discrimination against girls in the clas...

Big data, aka large data sets, is used to aid communication methodology practices every day. For example, Facebook takes cookies and internet history to tailor ads to your specific interests and even Chicago police use an algorithm to predict crime before it happens, yes… just like Minority Report. But sometimes the use of big data can bring about an unwanted outcome.                   Employers have started prioritizing their search for new talent and they need to sift through thousands of resumes in a manageable fashion. Programs are being used to create lists of potential employees on the internet and predict job success. This sounds good and nice but in reality there is potential for these programs to aid in discrimination based on race, sex or other protected classes.   Bloomberg delves into this idea of formulaic discrimination where employers focus their criteria on job retention a...

“Don’t Tread on Me.” Those words became a rallying cry of the American Revolution, immortalized by the Gadsden flag, pictured to the right. “Don’t Tread on Me” has come to symbolize resistance to tyranny, the rallying cry of freedom-loving revolutionaries fighting an oppressive colonial overlord.  It is somewhat ironic, then, that the same government that used “Don’t Tread on Me” as a justification for its foundation and existence may now outlaw this slogan from the workplace. In a decision by the Equal Employment Opportunity Commission (EEOC), the agency which enforces federal employment laws, “Don’t Tread on Me” might constitute a racially insensitive slogan, and employers who permit employees to wear clothing with this slogan may be subject to a racial harassment lawsuit. . Recently, a U.S. Postal Service employee filed a complaint with the EEOC alleging that he was the victim of racial harassment because a fellow employee wore a hat that contained the “Don’t Tread on ...

A North Dakota woman has settled her suit against her employer, Sanford Health for discriminating against her because she is transgender. Last December Faye Seidler filed suit in federal court against her employer claiming it engaged in discriminatory workplace practices in violation of Title VII for refusing her access to the women’s locker room.  Seidler was assigned the male gender at birth but later began to identify as female. In September 2013, prior to her employment with Sanford Health, she began hormone therapy to physically transition to the female gender. She was hired by Sanford in the Spring of 2-14, during her gender transition. Initially, she did not demand that she be allowed use of the women’s locker room, as she put it  “in recognition of her workplace transition.” Seidler also claimed that she had “thoughtfully and thoroughly” explained to everyone in her workplace about her gender identification throughout her term of employment. She ultimately demande...

Following the trend of expanding employee leave rights, here’s one kind of leave that everyone hopes they never need. On July 29, Governor Rauner signed into law the Child Bereavement Leave Act.  The statute is effective immediately.   The Act requires employers who are covered by FMLA to provide up to ten days of unpaid  leave for the death of a child of an employee and up to six weeks of unpaid leave for the death of a second child in a 12 week period.  Eligible employees are those that would otherwise qualify for FMLA but an employee who has exhausted their available FMLA leave will not be eligible for additional child bereavement leave.  Unlike FMLA requirements, employers cannot mandate that an employee use paid time during this leave and employees must use this leave within 60 days of the notice of the child’s death.   Employees may use unpaid bereavement leave: 1. to attend the funeral, or an alternative to a funeral, of a child; ...

On August 2, the fines that the Occupational Safety and Health Administration (OSHA) imposes on companies who violate its regulations increased by almost 80%. According to OSHA’s website, the new penalty structure is: Type of Violation Current Maximum Penalty New Maximum Penalty Serious $7,000 per violation $12,471 per violation Failure to Abate $7,000 per day beyond the abatement date $12,471 per day beyond the abatement date Willful or Repeated $70,000 per violation $124,709 per violation States that have their own occupational and safety health administrations, like Illinois, also must increase their fines to a level at or above those listed above.   The increase in OSHA fines was part of the budget that Congress passed last fall. This was the first increase in OSHA fines in more than 25 years. The fines will apply to any citations for OSHA violations o...

Although it seems backwards at times, public employers generally know by now that they can’t take action against an employee who speaks critically about the agency or circumstances within the agency if they are speaking as a private citizen about a situation that is of general concern to the public. In other words, public employees lose their protection under the First Amendment when they speak about matters that are related to their job. That’s pretty clear, but sometimes it’s not so easy to discern if the speech is related to the employee’s job. Take the case of Kristofek v. Village of Orland Hills as an example. Kristofek was a part time police officer for the Village and a full time police officer for the Village of Lemont. Among his part time officer duties, he was responsible for issuing traffic violations. During the course of his duties, he stopped a driver and ultimately placed him under arrest for driving without insurance and driving with suspended plates. The driver a...

Demystifying Transgender Issues in Illinois When:   August 23, 2016; 8:30 a.m - 10:30 a.m. Where:    Heartland Community College, 1500 West Raab Road, Normal, IL 61761 Room number: ACEC 2102 Transgender issues remain the emerging topic of 2016 for both individual rights as well as rights in the workplace. Be prepared for this rare intersection of rapidly changing law and social awareness. Ancel Glink attorneys will demystify the topic and give you practical advice on how to stay compliant with new laws and achieve a respectful environment for your workers as well as the people with which you do business.  Join us for our two hour seminar where we will share with you the following: the state of the law on transgender issues; policy considerations to ensure compliance with the law; training needs for staff and supervisors; facility and other accommodation requirements; and privacy issues. How:   Seat...

Most employers are aware that Illinois (and most other states) prohibit employers from basing an employment decision based on a record of past arrests, but not convictions. But, what about taking an adverse employment action based on the underlying behavior of the employee or candidate that resulted in the arrest but not conviction?  Earlier this week the First District, Second Division Appellate Court of Illinois affirmed that in order to terminate an employee based on their criminal record, there must be evidence the individual actually engaged in the alleged conduct. The Illinois Appellate Court recently addressed this issue in the case of Murillo v. City of Chicago .  The plaintiff, Arcadia Murillo had been working as a janitor for the Chicago police department for three years when, in 2009, the station’s cleaning service changed management.  With this change came a required background check for every employee in order for them to obtain security badges to th...

What if you observe one of your employees engaging in odd behavior at work? What if you know that this employee suffers from mental illnesses, and you suspect that this mental illness might be contributing to this odd behavior? Can you fire that employee or make him or her seek counseling? Is this a violation of the Americans with Disabilities Act (ADA)?  This issue was presented to a court recently . A former employee of the Wisconsin Department of Transportation filed a lawsuit against the Department claiming that it violated her rights under the Rehabilitation Act, which is a law similar to the ADA. The employee claimed that she suffered from a mental illness, and that she was fired because of her mental illness. The ADA and Rehabilitation Act both prohibit employers from taking negative action against an employee based on that employee’s medical condition without first making changes in the workplace to allow that employee to work in spite of his or her condition ....

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. The Illinois General Assembly just approved  P.A. 99-610 , amending the "Freedom from Location Surveillance Act" to expand employee privacy rights in online activities. The following is a summary of the major provisions of this new law, which takes effect January 1, 2017.  The new law makes it unlawful for an employer or prospective employer to do the following: 1. Request, require, or coerce an employee or applicant to: provide a username and password to any personal online account; access a personal online account in the employer's presence;  invite the employer to join a group affiliated with a personal online account; or join an online account established by the employer or add the employer to the employee's or applicant's list of contacts (e.g., "friends") ...

The Equal Employment Opportunity Commission (EEOC) announced this week that it has filed a lawsuit against a Bentonville, Arkansas McDonalds’ operators, for wrongfully firing a worker for being HIV-positive. The Plaintiff, referred to as John Doe in the suit, was hired by the McDonald’s franchise in November of 2014. A few months later a manager asked about his HIV status. The manager had also noted that a female employee had been previously fired for being HIV-positive. Soon after the inquiry by the manager, the Plaintiff was fired.  The suit claims that the McDonald’s restaurant, owned and operated by Mathews Management Co. and Peach Orchard, Inc. in Bentonville, Arkansas violated the ADA when it fired the HIV-positive employee and because it maintains a policy requiring all employees to report the use of prescription medication. Under the ADA, people who are HIV-positive are considered disabled and are provided legal protections against discriminatory behavior in employment...

Leaving some to wonder if this is a foreshadowing of its future decisions on the issue, the Supreme Court yesterday granted a stay of the 4th Circuit Court of Appeals ruling overturning the Gloucester County, Virginia, School District policy that requires all students to use the restroom that is consistent with their assigned gender at birth. For those readers who may be unfamiliar with the case, as a result of dissent in the school district over a transgender student’s use of the restroom consistent with his gender identity and not his assigned gender at birth, the school district issued a rule requiring all students to use the bathroom that correlated with their gender at birth. The parents of the student in question sued the school district for violation of Title IX. The district court ruled in favor of the school district but the court of appeals overturned the lower court, finding that the bathroom policy violated the student’s rights. The school district, which has state...

Last week the 7th Circuit Court of Appeals found that remarks by a manager that an employee would improve her chances for promotion by being stoic like an Indian and less emotional could be evidence of gender and national origin discrimination. In Hussain v. Federal Express Corp ., vacated summary judgment for FedEx  where the Plaintiff, Shabi Hussain, alleged sex and national origin discrimination against FedEx in FedEx’s failure to promote her. The court found that a jury could have ruled that FedEx’s failure to promote Hussain was motivated by discriminatory intent. Hussain had offered evidence of her hiring manager telling her, after asking how she could get promoted, she needed to be more Indian. The hiring manager had never promoted a woman during his six years as managing director of the Chicago Metro District and had also told her that she was too emotional and overly aggressive, which both support an implication of sex discrimination. Here’s how it went down. Hussain ...

In a stark repudiation of the Equal Employment Opportunity Commission (EEOC), the Seventh Circuit Court of Appeals ruled last Thursday that federal law does not prohibit the firing or disciplining of an employee due to his or her sexual orientation. As we discussed , last summer the EEOC ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation.  The Seventh Circuit upheld a lower court ruling last January that Title VII does not prohibit discrimination based on sexual orientation. The Seventh Circuit largely echoed the court’s ruling in that case, agreeing that the language of Title VII makes it clear that Congress did not intend to include sexual orientation as one of the protected categories against whom discrimination is illegal.  Despite this ruling, it still is probably not smart for employers to fire or discipline an employee based on that employee’s sexual orientation. Many states, including Illinois, have laws...

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. We previously reported on a bill introduced this session that would establish certain obligations on local governments regarding reimbursement of local officials' expenses. That bill previously passed the Illinois Senate and House, and has now been signed by the Governor as  P.A. 99-604 .  The Local Government Travel Expense Control Act applies to school districts, community college districts, and all units of local government  except  home rule units. Illinois defines  "units of local government" to include counties, municipalities, townships, special districts (i.e., park districts, library districts, fire protection districts, etc), and various other units of local government.  The new law places two new obligations on units of local government: (1) to adopt by ordinance o...