The Workplace Report with Ancel Glink

When an employee takes a Family and Medical Leave Act (FMLA) leave of absence for a serious health condition, an employer often is confronted with a difficult decision-making process when the employee decides to return to work.  The process is especially difficult when the reason for the leave is a health condition that may impair the employee’s ability to perform the job on his or her return.  For this reason, it is helpful to review the Department of Labor’s fitness-for-duty regulations in the context of a question and answer format. Question 1 :  Can the employer require the employee to supply a fitness-for-duty certification upon his or her request to return to work? Answer:  Yes, provided that the employer has laid the proper groundwork for such a requirement.   First , the employer must have a uniformly-applied policy or practice that requires all employees who are similarly situated (that is, all employees with the same or similar jobs and the sa...

Back in June, we reported on new EEOC rules, which take effect January 1, 2017, that permit and encourage wellness programs in the workplace.  EEOC described how the new rules would comply with GINA and the ADA, since participation in these programs often involves the disclosure of medical information that would typically be classified as confidential.  Both the ADA and GINA specifically allow employers to perform health evaluations and make health-related inquires, so long as such information is collected as a part of a voluntary wellness program.  Employers may also “offer an inducement to an employee whose spouse provides information about the spouse’s manifestation of disease or disorder as part of a health risk assessment.”  29 C.F.R. § 1635.8(b)(2)(iii) These EEOC rules encourage such wellness programs by allowing employers the ability to offer incentives of up to 30 percent of the total cost of their cheapest individual health insurance plan.   As An...

Halloween, despite many people’s obsession with weight, is still a popular day for celebration for adults. It can be a light hearted holiday where people can show their creative or humorous side in dressing up in a costume that can range from fun and simple to elaborate. And there’s the candy – always a treat. But celebrating Halloween at work can also be tricky (smooth use of the words trick or treat, right?).  Many workers, and employers as well, want to use the day as a time for a little fun at work, but is that a smart idea. The benefits are obvious. Workers can have fun dressing up and participating in a costume contest for nominal prizes (so no one is upset if they think the contest was “rigged”).  Employees and/or employers can bring in treats for everyone to enjoy. It builds camaraderie and can reduce workplace stress by allowing a little fun to happen in the day. But, there’s a negative side to Halloween at work, too.  Without fairly strict costume guide...

Do you know anyone who practices a religion called “ Onionhead ?” I would venture to guess that you do not. This did not, however, stop a federal court from recognizing Onionhead as a religion in a case in which employees accused their employer of firing or disciplining them because they did not practice Onionhead. The case demonstrates the need for employers to understand how courts define a religion in the context of the workplace.  In 2007, the CEO of a New York discount medical plan provider felt that the culture of his company was deteriorating. To improve the culture and bring harmony to the workplace, the CEO hired his aunt to implement a program she developed called Onionhead. The plaintiffs claimed that the Onionhead program required employees to engage in group prayers and chants in the workplace, light candles, and respond to emails relating to demons, Satan, God, and other spiritual concepts. They claimed that they were told to wear Onionhead buttons, put Onionhea...

Despite the last minute attempts by groups bringing lawsuits that challenge the now OT rules and legislation introduced to delay implementation, December 1st is around the corner bringing employers to the day that they may have dreaded – the effective date of the new OT rules. If you are an employer who has procrastinated in developing an implementation plan, you should waste no more time. While hope always exists for a last minute reprieve, it’s just not likely to happen. Chances are more than good that nothing will stop implementation of the new rules. While every employer know by now that the new salary test threshold to meet in order to maintain exempt status is $47,746,(remember there are two tests for the “white collar exemption” – salary test and duties test) what happens if part of the employee’s salary is based n commission or bonus? The Department of Labor is changing the regulations as of 12/1 to allow nondiscretionary bonuses and incentive payments (including c...

The Equal Employment Opportunity Commission (EEOC) has recently issued their SEP (Strategic Enforcement Plan) for fiscal year 2017, announcing two major large issues to their agenda. The commission will be looking, through a magnifying glass might I add, into complex workplace structures and their policing of discrimination against Muslims. These new priorities are set to occur between the years of 2017 through 2021. The reason for issuing a public strategic enforcement plan, as opposed to an internal agenda, thereby maybe surprising employers, according to the EEOC, is that the agency hopes that employers will focus attention on these issues as well, resulting in a win-win situation.. There are six existing broad enforcements, that are the same as those previously set out, around which the agency will structure their priorities. These include, but are not limited to: 1. Eliminating Barriers in Recruitment and Hiring, 2. Protecting Immigrant, Migrant and Other Vulnerable Worke...

One of the most watched cases on transgender rights in the Chicago area has been the student rights case at Fremd High School in District 211. As readers may recall, a student assigned male at birth but now identifying as female sought access to the female locker room. In response to concerns from parents other than those of the student’s, the district tried to resolve the issue by giving the transgender student a separate area to change which was close to but not in the girls’ locker room. The student and her parents filed a claim with the Office of Civil Rights arguing that the district was violating her Title IX rights, which prohibits discrimination based on gender in school programs and services.  The OCR found that requiring transgender students to use a separate room apart from the locker room to change violated Title IX. The OCR also acknowledged that the student in question, her parents and the district had reached an agreement that the student would use a private are...

With Election Day fast approaching, employers should be aware of their obligations to employees who wish to vote. While no federal laws require employers to give employees time off to vote, many states have passed such laws. Illinois is one of those states. Illinois law ( 10 ILCS 5/17-15 ) requires employers to give employees two consecutive hours of paid time off on the day of an election in order to vote. This two hours of time off can only take place during the time that the polls are open, which this year will be from 6 a.m. to 7 p.m. So, this law does not permit employees to take time off from work for early voting. Employees must request time off to vote prior to Election Day. Employees who are not required to work for a two hour time period after the polls open or before they close are not entitled to time off from work. This means that an employee who works a shift from 10 a.m. to 3 p.m. would not be able to request two hours off to vote. Employers can specify when their em...

Many employers try to make it easy for supervisors and employees alike by implementing a policy which sets a limit on the number of absences an employee can have in a year before they lose their job. It seems like an easy way to ensure that all employees are treated the same as far as the consequences of their absences go. At least employees know where they stand with a hard and fast rule. The problem with these inflexible policies, according to the EEOC, is that they can result in discrimination against employees with disabilities.  It recently filed suit against Wayne Farms, LLC claiming the company’s policy which caps the number of allowable employee absences makes little to no allowance for disability-related absences. In its suit, it claims that Latonya Hodges, a Wayne Farms employee, was terminated when her asthma-related absences exceeded the cap, despite providing medical excuses in violation of the ADA. Employers with policies that set absence caps should remember...

North Carolina was the state that sparked the debate of transgender rights in the United States. The state famously tried to restrict use of bathrooms and locker rooms to a person’s biological gender. Since then, the debate about access to public bathrooms has raged. Recently, the Alliance Defending Freedom (ADF) in Massachusetts filed suit against the state’s Attorney General Maura Healey, asking for an exemption from a state law that requires public places to allow transgender people to use bathrooms according to their gender identity. The ADF and other religious organizations are arguing that the law is an encroachment on a church’s freedom of religious expression and freedom of speech. President of the Massachusetts Family Institute, who is working with the ADF, said “This is bigger than bathrooms. This law is eliminating rights that have existed for as long as this country has been in existence — fundamental rights to privacy, to modesty and safety, now constitutional r...

The 7th Circuit Court of Appeals on Tuesday granted a rehearing on the issue of whether sexual orientation is protected under Title VII.  The Plaintiff in that case, Beth Hively, a part time adjunct professor at Ivy-Tech Community College in Indiana, sued the college for gender discrimination asserting that she was denied promotion to full-time status, and that Ivy Tech eventually decided not to renew her employment contract, because she is openly gay. The district court dismissed the claim, finding that Title VII does not apply to sexual orientation discrimination. Hively appealed and the court of appeals affirmed the trial court’s decision. It held that contrary to the EEOC’s position that sexual orientation is protected by Title VII, that Congress had a “narrow view of sex” when the Civil Rights Act was enacted in 1964, and that “sexual orientation and transsexualism, for example, did not fall within the purview of Title VII.” Simply put, the court found no evidence that th...

In January of this year, we identified what we thought would be the five hottest labor and employment topics in 2016. The topics included the change in the DOL overtime rules, naturally; transgender rights, obviously; and paid sick leave. Last week the County of Cook joined the City of Chicago and a number of other local governmental bodies in passing an ordinance mandating paid sick leave to employees who work in the County. Similar to the ordinance mandating sick leave recently enacted by the City of Chicago, employees in Cook County are entitled to accrue up to 40 hours of sick leave each year and carry over up to half of that time into the next year. Employers that are covered by the ordinance include individuals and companies with a place of business within the County that gainfully employ at least one covered employee. Government entities and Indian tribes are not covered employers under the ordinance. Workers are entitled to benefits under the Ordinance if they: ...

Do you have a policy to keep your employees safe from crime? If not, you might be violating Occupational Safety and Health Administration (OSHA) regulations. A company providing in-home nursing services recently found this out the hard way . The company sent its employees into the homes of patients to provide health care services. One of the nurses reported to the company that she was experiencing sexual harassment in one of the houses she went to, alleging that a man who lived there repeatedly groped her and made sexual comments to her. Eventually, he sexually assaulted the nurse, and was arrested.  Other nurses at the company reported to OSHA that they too had been the targets of sexual harassment by the man, and had reported this to the company. The company, however, continued to send nurses into the home, and did nothing to protect their safety. In fact, the company never even told the woman who was sexually assaulted about the complaints it had received about the man....

Authored by Amanda Riggs and Julie Tappendorf, originally posted on her blog, Municipal Minute, for Ancel Glink covering a variety of local government issues. For an individual to bring a lawsuit before the court they must have what is known as standing - in other words, the person must show that he or she has been or is about to be injured by the defendant.  In a recent case, the an Illinois appellate court found that the plaintiffs had no standing to bring a lawsuit against the Village of Bellwood for failure to hire the plaintiffs as police officers. Burdi v. Village of Bellwood, 2016 IL App (1st) 152548-U. Both Burdi and Carr applied for jobs on Bellwood’s police force through the Board of Fire and Police Commissioners, who had sole hiring authority.  The strict process required that each applicant be ranked and tested in order to be considered for hire.  Burdi was ranked number 1 and Carr number 11. However, due to “unfavorable” results from the testing, Bur...

Employers can do a myriad of different checks on potential or current employees, and one of them is a credit check. But, Illinois restricts certain background checks when it comes to employment screening practices. Restrictions on a popular background check, a credit report, was recently discussed by the Illinois Appellate Court in Ohle v. The Neiman Marcus Group .  In Ohle , the Plaintiff initially received a conditional offer of employment for a sales associate position in the Defendant’s Oak Brook store. The final offer was contingent on passing a background check, including a credit check which Plaintiff failed because of a record of civil judgments and accounts in collections. Plaintiff claimed that in performing the credit check that Neiman Marcus violated Illinois Employee Credit Privacy Act. In addition to the restriction in the Fair Credit Reporting Act,  The Illinois Act restricts the use of credit information in the hiring process unless the circumstances...

The United States Supreme Court receives about 7,000 petitions for review each term.  Of those 7,000, the Court hears and decides about 1% of them, or about 70 cases.  The October, 2017 term began with arguments in two cases on October 4, 2016.  In all, 40 cases have been accepted for argument so far during the October term.   Most of the cases accepted for argument to date raise technical issues.  For example, Manuel v. City of Joliet raises the question as to whether a falsely imprisoned individual has the right to raise a claim of malicious prosecution in federal court even though an adequate state remedy exists.  McClane Company v. EEOC deals with the deference, if any, that is owed by a federal appeals court to the decision of the district court regarding the scope of an EEOC subpoena.  And National Labor Relations Board v. SW General, Inc . concerns the legitimacy of an unfair labor practice charge filed by an acting general counsel of the...

We have discussed whether an employer can require an employee to get a haircut , and explained that in most situations, an employer may do so. But what if that hairstyle is associated with a particular ethnic group? For example, can an employer refuse to hire an African-American employee who has dreadlocks? Or would this be a violation of Title VII of the Civil Rights Act, which prohibits employers from discriminating against employees because of their race?  A court recently had to make such a decision . The case involved an African-American woman came to a job interview wearing her hair in short dreadlocks. After the interview, the HR manager informed the woman of the employer’s policy in regards to hairstyles, which stated that “hairstyles should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.” The HR manager told the woman that her hairstyle violated this policy, and that she would not be hired unless she cut her dreadlocks....

Let’s say you, as an employer, in the course of preparing for the change in the DOL overtime regulations, are conducting an audit of your exempt job classifications and discover that a few of your exempt jobs really are not eligible for the overtime exemption after all. Maybe this is a result of a change in duties over time for the job title or just an inadvertent misclassification from the beginning. The problem is, of course, now that you know about this, you also know that you probably owe these employees some overtime pay. What do you do? 1. You could do nothing. You would be surprised at how many employers consider this as their first option. Maintaining the status quo with employees who are generally happy with their jobs seems to follow the old adage of “let sleeping dogs lie.” The problem is that a three year statute of limitations exists for wage claims, so even if you change your overtime practices right this minute, as an employer you won’t be in the clear for thre...