The Workplace Report with Ancel Glink

Many employers may be surprised to learn that it is illegal to enter into agreements with competitors regarding employee hiring. Federal antitrust law prohibits businesses who compete with each other to enter into agreements concerning employee wages, benefits, and many other terms of employment. The U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) recently released guidance for employers on these issues, which you can access by clicking here .  The guidance discusses how agreements among employers not to recruit certain employees or not to compete with one another over employee wages are illegal. These agreements do not have to be official or in writing—informal, oral agreements are also illegal. They also do not even have to be between the two companies directly, as agreements brokered by a third party will also be illegal. The guidance notes that it is even illegal for employers to share information regarding employee wages or benefits with one anothe...

Playing it close to the vest, the Department of Labor issued a brief and non-committal press release over the holiday weekend about the injunction issued late last Tuesday which put the brakes on the new overtime rules set to take effect this Thursday. Noting that the DOL “strongly disagrees” with the court’s decision; it also referred to the effect of the preliminary injunction as “delaying a fair day’s pay for a long day’s work for millions of hardworking Americans.” Despite its strong disagreement with the decision of Texas federal court judge Amos Mazzante, the Department did not commit to appealing the order issuing a preliminary injunction; rather it said that it was “considering all of our legal options.” Last Tuesday’s decision was the result only of a hearing on whether the court should put a temporary hold on the December 1st effective date of the new overtime rules while all of the underlying claims of the plaintiffs in the case are heard. Preliminary injunctions, w...

Late yesterday, a federal district judge in the Eastern District of Texas issued a nationwide injunction against the new Department of Labor overtime rules set to go into effect on December 1st.  In a ruling that surely came as a surprise to employers and employment experts alike, the judge found that the new salary level is unlawful as is the automatic adjustments to the minimum salary level for white collar exemptions set to take place beginning in 2020. Employers across the nation have spent the last several months preparing for the changes that were expected to go into effect next week.  The timing of the court ruling may leave many employers in a quandary regarding their implementation plans, but the scrutiny of the new rule is not over yet.  Undoubtedly the Department will appeal the decision and the 5th Circuit Court of Appeals has the option of dissolving the injunction, which could happen fairly quickly, putting employers back to the spot that they were in bef...

It must have been a close call when the 7th Circuit affirmed summary judgment last month for an employer in a retaliation claim. In Lord v. High Voltage, Inc. , the plaintiff was discharged for, among other reasons, not reporting harassment in a timely manner as previously directed. The unusual part of this decision is that the plaintiff waited only one week between the period of time of the alleged harassment before reporting the incidents. It really makes you think that there must have been something more going on there. Defendant develops gaming software and employed Ryan Lord as associate producer. In January 2007 he complained to HR that his male co-workers had created a hostile work environment by teasing him about a female engineer who also worked there. HR investigated the complaint and concluded that the actions did not arise to sexual harassment but directed him to promptly report any future incidents of harassment. [NOTE: encouraging employees to promptly report harassm...

The popular website Internet Movie Data base ("IMDb"), has come under some scrutiny lately for posting information about actors’ ages. This comes at a time when California has yielded to allegations of ageism in Hollywood and adopted legislation prohibiting online entertainment databases that host information relevant to hiring (resumes, headshots, etc.) from publishing the age or birthday of anyone in the entertainment industry if they request withholding publication of that information. Many believe the law was directed at the top movie and television rating website IMDb; and IMDb is not taking it lying down. It has brought suit alleging that the restriction on the display of ages violates free speech rights under the U.S. Constitution. Ageism, to the extreme, is reportedly a plight of actors in an industry that clearly values youth and not experience. The female lead in Guardians of the Galaxy, Zoe Saldana, told the Telegraph in 2014 that “[b]y the time you’re 28 you’...

Tuesday, the Illinois Labor Relations Board (“ILRB”) issued a 5-0 verbal order determining that the State of Illinois and AFSCME Council 31 are at an impasse in negotiations for a new collective bargaining agreement for state employees. The unanimous ruling means Governor Rauner now has legal authority to implement his last and best offer to AFSCME once a final written ruling. When that happens, AFSCME will have several options, including initiating a strike or filing an appeal the ILRB decision to the Illinois Appellate Court. The ILRB decision also overturns an earlier 400-page decision issued by an administrative law judge. In that decision, the administrative law judge offered a mixed result, finding that the Governor should be allowed to impose its wishes on some issues, but that the parties should return to the bargaining table on others. The unanimous ILRB ruling is a significant victory for Governor Rauner. While the parties can go back to the bargaining table, that op...

Over the past few decades, high levels of immigration have changed the demographics of the United States. This has resulted in a sizable portion of the population whose primary language is something other than English. According to the 2010 Census , 21 percent of the population, or 60.6 million people, spoke a language other than English at home.  In response to these changes, some employers began to implement English-only policies in the workplace. These policies generally came in two forms: 1) policies which forbade employees from speaking any language but English in the workplace; 2) policies which forbid languages other than English from being spoken at certain times. Are such policies legal? As for the first policy, the answer is no in Illinois, and probably no in the rest of the country. The Illinois Human Rights Act ( 775 ILCS 5/2-102(A-5) ) expressly forbids employers from implementing policies that prohibit a language from being spoken by an employee in communicat...

     President-elect Donald Trump has announced a 7-point healthcare plan that he intends to implement early in his administration.  Briefly, the seven points are as follows: Complete repeal of the Affordable Care Act. Allow sale of health insurance across state lines. Elimination of the current threshold percentages (10% for most taxpayers and 7.5% for seniors) for deduction of medical expenses on individual tax returns. Expand the allowable use of health savings accounts (HSA’s) beyond the employment relationship.  Contributions would be tax-free, allowed to accumulate, and could be passed on to heirs. Require price transparency from all medical providers to allow individuals to price-shop for medical care. Medicaid block-grants to states. Remove barriers to entry into free markets of safe and reliable drug products, including allowing consumers to import such drugs from outside the country.             What does t...

Employee substance abuse is a critical problem that affects many employers and creates considerable workplace safety issues, particularly when an employee is under the influence of illegal drugs or alcohol at work. That’s why substance abuse in the workplace is not generally subject to progressive discipline and typically grounds for immediate termination. While positive drug tests are typically the mechanism for determining whether an employee is under the influence of illegal drugs or alcohol, employers rarely have the opportunity to use medical treatment records in the disciplinary process. The reason is because treatment records are generally protected by state and federal confidentiality laws and unavailable to employers in the disciplinary process. That reality, however, may change in the labor context. By way of an arbitration award that was subsequently upheld by the circuit court, employers are now armed with additional tools – medical treatment records and last chance ag...

You’ve probably heard of the statistics about Americans owing nearly $1.3 trillion dollars in student loan debt. Maybe you’ve heard that the average undergraduate student in the class of 2016 has $37,000 dollars of debt hanging over their head.  So how are all of these students going to pay all of this debt off and buy a house and move out of their parent’s basement? Student loan reimbursement may be the next big employment perk. Currently, only three percent of employers offer student loan reimbursement as a benefit to their employees. While student loan reimbursement plans have been available for years through public service loan forgiveness and loan repayment assistance programs, it has historically been associated with jobs that benefit the public interest. When it comes to the private sector, they’ve been slow to catch up. That doesn’t mean they aren’t on their way though. Price Waterhouse Coopers and Chegg are both large private companies that have gotten on the bandw...

As we move deeper into November, we are on the cusp of the dreaded cold and flu season. Nasty strains of these viruses have been known to decimate workplaces, virtually shutting down operations for days at a time. One possible defense to this disruption is to require your employees to get flu shots. Not only would such a requirement increase productivity, but it would improve employee health and the health of those clients with whom the employees interact. Sounds like a win-win, right? Is such a requirement lawful? This question is being resolved in a Pennsylvania court, in which the Equal Employment Opportunity Commission, the agency in charge of enforcing federal employment laws, has filed a lawsuit against a hospital that fired an employee who refused to receive flu shots based on religious objections. The EEOC has posted a Q&A on its website discussing whether it would be lawful for an employer to require employees to receive a flu shot, and wrote that under Title VI...

The current efforts towards achieving widespread anti-discrimination protections based on sexual orientation are gaining momentum.  While federal and state legislation has mostly stalled, two court developments suggest acceptance of the EEOC’s interpretation that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. The first development was spurred by EEOC litigation in Pennsylvania.  In one case, EEOC v. Scott Medical Health Center, P.C., the EEOC alleged that an employee was subjected to sexual harassment due to his sexual orientation in violation of the sex discrimination prohibition of Title VII.  The EEOC specifically asserted that the employee was subjected to a sexually hostile work environment perpetuated by the Defendant and constructively discharged as a result of the intolerable working conditions.  Just last week, the district court judge in the Eastern District of Pennsylvania ruled that the EEOC correctly ...

We would love to say that we predicted that the Cubs would win the World Series this year, but we have to be honest that we didn’t. One prediction that we did make in January which has turned out to be true is that transgender rights would be one of the hottest employment topics of the year. On a national level, the issue of what rights are protected by law for transgender individuals remains uncertain.  Hopefully, the Supreme Court will give guidance when it considers the now well known “bathroom case” emanating from the 4th Circuit which held that Title IX prohibited a Virginia school’s rule that students must use the bathroom consistent with their gender assigned at birth. Certainly the federal courts at all levels will address gender identity rights under Title VII of the Civil Rights Act in the near future as well. On a state level, it is clear that the Illinois Human Rights Act prohibits discrimination based on gender identity. So, the question is whether employers n...

Let’s say you’re an employer with a typical office set-up of cubicles for most of your staff. Let’s say that you have a number of employees in a somewhat small space so the cubicles are not large and are close together.  And then let’s say that you have an employee that says to you that he can’t sit in the cubicle because it makes him too anxious because he has claustrophobia. What do you do now? Claustrophobia, like some other mental health disorders, is sometimes not taken very seriously, maybe because mental health disorders often have few or no outward manifestations so it is more difficult for some to understand and the validity of the disorder is more suspect.  According to the EEOC though, claustrophobia, like many other mental health disorders, is a disability under the Americans with Disabilities Act. In a recent case filed by the EEOC against Regis Corporation, on behalf of former hair stylist Nora Jacquez. She told her employer she could not work in a stati...

Following the lead of the City of Chicago and other municipalities nationwide, on October 26, 2016, the Cook County Board of Commissioners voted to gradually increase the minimum wage in Cook County to $13 per hour by July of 2020. The ordinance applies to any business or individual that employs at least one “employee” who performs at least two hours of work in any two-week period while physically present within the geographical boundaries of Cook County, with very few exceptions. The new law applies to the all of Cook County, including unincorporated areas. However, home-rule towns can vote to opt out of the increase. Effective July 1, 2017, employers in Cook County will be required to pay a higher minimum wage that will continue to increase every year thereafter. Cook County’s ordinance is similar to the City of Chicago’s minimum wage increase, which also gradually raises the minimum wage to $13 per hour by 2019. The following provides the graduated scale of the increases under ...

As we discussed last summer , OSHA passed a regulation making it tougher to conduct post-accident drug testing. That rule was supposed to take effect today. However, OSHA has delayed the enforcement of the rule for another month to December 1, 2016. This is the second time that the regulation has been delayed, making one wonder whether the regulation will ever be implemented.  The regulation passed by OSHA does not specifically refer to drug testing, but instead requires employers to establish a “reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately. The rule prohibits the procedure from deterring or discouraging an employee from accurately reporting a workplace injury. In OSHA’s commentary that accompanied the regulation, it claimed that post-accident drug testing could deter the reporting of workplace injuries. It wrote that the rule prohibits employers from using drug testing as an adverse action against employees who...