The Workplace Report with Ancel Glink

Employee misclassification can be a problem for everyone involved. We’re talking problems for the employer, employee, state and federal government entities. These problems can lead to the denial of overtime compensation, unemployment, family and medical leave, etc… And this doesn’t even include those who misclassify employees on purpose to exempt the workers from the Fair Labor and Standards Act (Don’t do this).  Recently we’ve seen joint federal and state agreements becoming more prominent in the enforcement of accurate classifications. A total of 35 states currently have an agreement with the U.S. Department of Labor, creating a system for information sharing between the partners and making it easier for employers to access classification information. This is designed to assist both employers and workers in determining proper classification of employees as exempt or non-exempt in many common job titles. The U.S. DOL has had an agreement with the Illinois DOL since September ...

Employers by now are aware that the Department of Labor rules about overtime are scheduled to change in just over two months, on December 1, 2016. Now, two separate groups , one consisting of 21 states and the other consisting of a group of business organizations,  have filed suit in a Texas court to stop that change. As employers know, the change in the overtime rules will affect who will be eligible for what is commonly referred to as white collar exemptions (bona fide executive, administrative, or professional positions).  While the rules do not change the duties test for these exemptions, as of December 1st, employers must pay a minimum salary of $47,746 to employees to meet the exemption, with an automatic increase of the minimum salary tied to cost of living. The suits attack the impact of new rule in general and also focus on the automatic increase provision. The states’ claim that the new rule will force many businesses, including state and local governments, ...

Last month, Massachusetts became the first state to pass a law making it illegal for an employer to ask about an employee’s salary history in a job interview . It may not be the last. Bills have been introduced into the legislatures of New York and California that would ban employers from asking employees about salary history during an interview. Moreover, three members of Congress recently announced their intention to introduce a bill that would ban employers nationwide from asking about salary history in job interviews .  Outside of Massachusetts, it is not illegal for employers to ask a candidate for his or her salary information during a job interview. If the candidate fails to provide this information, the employer can choose not to hire him or her.   Actually verifying salary information may be difficult, however. The IRS keeps tax returns confidential, so it will not release a job applicant’s W-2s to a prospective employer. While potential employers can reque...

On September 19, 2016, the City Council in Seattle passed, by unanimous vote, an ordinance requiring some employers to implement predictable work scheduling practices.  The Secure Scheduling Ordinance, to be effective on July 1, 2017, will apply to retail and fast-food employers with 500 or more employees and at least 40 locations around the globe and to employees who spend at least 50 percent of their working time at locations within the city limits of Seattle.  The Seattle ordinance follows in the footsteps of a similar ordinance in San Francisco and may become a model for other jurisdictions that are considering such legislation, including Illinois and the City of Chicago. Predictable scheduling has several elements, including: 1) The Right to Request, which provides employees with the right to request adjustments in work schedules without retaliation from the employer.  This is a feature of the San Francisco and Seattle ordinances and legislation in Vermon...

Although the Victims Economic Safety and Security Act (VESSA) has been in effect for a number of years, like many other employee protection laws, it only applied to employers with 15 or more employees.  Effective January 1, 2017, the Act will provide benefits to all employers, regardless of the size of the workplace. VESSA provides unpaid leave, similar in nature to FMLA, to employees who are victims of domestic or sexual violence or whose family members or household members are victims of domestic or sexual violence. Currently the law allows employees to take up to 8 workweeks of unpaid leave in any 12-month period if they work for an employer with 15 to 49 employees, and 12 workweeks of unpaid leave in any 12-month period if they work for an employer with 50 or more employees. Effective January 1, 2017, employees who work for an employer with no more than 14 employees will be entitled to 4 workweeks of unpaid leave in any 12-month period to address issues related to domestic...

In another example of the Obama Administration’s support for unions, last month the National Labor Relations Board (NLRB) held that teachers’ assistants (TAs) have the right to unionize at private universities. The decision overturns a 2004 decision in which the NLRB held that TAs do not have this right.  The NLRB is the government agency that oversees the National Labor Relations Act (NLRA) . The NLRA gives employees the right to unionize. It is a violation of the NLRA for an employer to prevent employees from unionizing, or even to prevent employees from discussing unionization.  In determining whether TAs have the right to unionize, the question has always been whether they are considered employees or merely students? In its 2004 decision, the NLRB held that TAs should be considered students and not employees. It held that, unlike the employer/employee relationship, in which the parties have a conflicting economic relationship, the professor/TA relationship is b...

With virtually no fanfare, an Illinois Labor Relation Board administrative law judge recently issued a recommended decision and order that poses tremendous operational consequences to employers and virtually undercuts the ability to use surveillance cameras to capture and deter not only misconduct but also nefarious activity. In Painters District Council No. 14 and the Chicago Transit Authority , L-CA-14-035, the administrative law judge concluded the CTA violated the Illinois Public Labor Relations Act (“the Act”) when it failed and refused to bargain with the Union over a disciplinary policy relating to footage taken from surveillance cameras and the effects thereof. This decision presents questions of bargaining obligations that negatively affect an employer’s prerogative to implement safety and security measures in the face of known misconduct and criminal activity. The administrative law judge’s findings and conclusions of law impose a broad legal obligation that dramatically exp...

Today we want to bring to your attention the case of Amour v. Lawrence & Memorial Corp. out of Connecticut.  Plaintiff claims she was forced to quit her job at a hospital there. How? Simply put, her coworkers were bullies. More expansively put, plaintiff has hypertension and her coworkers were bullies. But the real inquiry here is why this is important. Long story short, it’s because all workplace accommodations should be taken seriously. Plaintiff’s coworkers were aggressive at work, prone to angry outbursts and yelling, which didn’t sit well with her hypertension. In fact, her coworkers exacerbated her tension to a point that the four medications she took to control her blood pressure weren’t working anymore. At one point her blood pressure reached a high of 209/88 and she had to seek emergency care! Her doctor recommended she return to work only if she would be assigned an alternate position or shift, with a different supervisor, and be treated more respectfully. Th...

The Equal Employment Opportunities Commission continues its commitment in enforcing transgender opportunity in the work place. Recently, it filed suit against Rent-A-Center for violating Title VII of the Civil Rights Act of 1964, alleging that it discharged an employee because she is transgender.  The employee brought her claim to the Commission after she was discharged for what she believed were pretextual reasons. The EEOC investigated the matter and found evidence that  the company’s managers disapproved of the employee’s gender transition and that was the motivating factor in firing her. The EEOC filed suit after first attempting to reach a pre-litigation settlement through the agency’s conciliation process. The Rent-A-Center location that hired and eventually discharged the employee is located in Rantoul, Illinois so the agency has filed suit in the District Court in the Central District of Illinois, Urbana Division.  This may set up an interesting tes...

Last month, Governor Bruce Rauner signed into law the Freedom to Work Act . The law makes it illegal for an employer to enter into a non-compete agreement with a low-wage employee. It defines low-wage employee to be any employee making either minimum wage or less than $13 an hour.  The law defines a non-compete agreement to be any agreement prohibiting an employee from working: 1. for another employer for a specified period of time; 2. in a specified geographic area; or 3. for another employer who does similar work to that done by the employee’s current employer. The law takes effect on January 1, 2017, and only applies to non-compete agreements entered after that date.  Non-compete agreements have come under fire recently. A 2013 Illinois appellate court decision criticized employer use of non-compete agreements and made them more difficult to enforce. The White House recently commissioned a study of non-compete agreements that criticized the way...

According to the Equal Employment Opportunity Commission (EEOC), a New Mexico Orthopaedic medical facility will pay  $165,000 to settle a lawsuit. You probably guessed it from the title, but the medical facility settled a lawsuit for associational disability discrimination. Just a reminder, associational discrimination can occur when a company denies, in some way, equal jobs or benefits to someone because that person is associated with someone else who has a disability. The EEOC is looking for more than just money though. In addition to the pecuniary loss, the medical facility will have to give annual anti-discrimination training for its employees and report to the EEOC if there are any further complaints of disability discrimination.  According to the press release, the EEOC sued the medical facility for firing a temporarily staffed employee, and failing to employ her for full time because of her relationship with her then three year old daughter, who was considered disa...

Authored by Julie Tappendorf and originally posted on her blog, Municipal Minute, for Ancel Glink covering a variety of local government issues. We've reported quite a bit about the impact employee social media use can have on the employee's job and the employer. Recently, a New Mexico Supreme Court cautioned a district court judge about his Facebook activities as they related to a case pending before the judge.  State of New Mexico v. Thomas. The case involved a trial where the court found the defendant guilty of murder and kidnapping. The defendant had appealed his convictions on numerous grounds, including that the judge violated the judicial code of conduct by demonstrating bias in his social media postings. Specifically, the judge has posted the following on his judicial campaign Facebook page: I am on the third day of presiding over my 'first' first-degree murder trial as a judge. In the trial I presided over, the jury returned guilty verdicts for fir...

One employment trend gaining traction recently is mandatory paid sick leave benefits for employees. A number of municipalities, including Chicago, and a handful of states have passed laws requiring employers of a certain size to provide paid sick leave days to their workers. Now the state of Illinois is joining in on the subject by mandating permissible uses of paid sick leave benefits. Effective January 1, 2017 the Employee Sick Leave Act (P.A. 099-0841) ensures that employees may use sick leave benefits for not only their own personal medical needs, but also for the illness, injury or medical appointments of a broad spectrum of family members. While the Act does not itself require employers to provide paid sick leave, it does require employers who do provide that benefit to allow employees to use that leave time for absences resulting from the illness, injury or medical appointments of the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grand...

As we discussed in March , the Equal Employment Opportunity Commission, the agency in charge of enforcing federal employment laws, proposed changes to its retaliation guidelines for the first time in 18 years. Last week, those changes became final .  Retaliation occurs when an employer takes negative action against an employee for exercising his or her legally-protected rights. For example, retaliation would occur if an employer demoted an employee because that employee filed a claim with the EEOC against that employer. According to the EEOC, retaliation is the most frequently asserted basis of discrimination, comprising nearly 45% of the claims that it receives .  The changes to the EEOC’s guidelines expand employee protections. They broadened the scope of what constitutes retaliation, stating that federal employment laws should be given an “expansive definition” and that “great deference” should be given to employee claims of retaliation. The guidelines also make it...

That old saying “where there’s a will there’s a way” has practical applications with this court decision pertaining to accommodations. The Sixth Circuit Court of Appeals recently ruled that the employer (BellSouth) did not have the obligation to create a permanent light-duty job as a reasonable accommodation.  Let’s start from the beginning. The employee worked for BellSouth for over 30 years, where his most recent job was a facility technician. His job was installing and repairing internet and telephone equipment and it required him to work in various types of weather conditions. The employee was prevented from working his job when he developed a blood clot and was restricted from climbing, wearing boots, and being in cold weather. Initially, the employee’s limitations were thought to be temporary, so BellSouth allowed the employee to do a few different light-duty jobs around an office. In February, the company learned that the limitations would be permanent and, instead ...