The Workplace Report with Ancel Glink

The Obama Administration has been pretty hostile to non-compete agreements . Last May, the Administration issued a report critical of non-compete agreements , and recently urged states to restrict the scope on non-compete agreements and take measures to increase their transparency. Even before the Obama Administration did this, many states had passed laws limiting the ways that employers can use non-compete agreements. Illinois has been one of these states , making those agreements illegal for low-wage workers . So, what can we expect under a President Trump? Will he continue the hostility towards those agreements demonstrated by the Obama Administration? Trump did not say much about non-compete agreements during the campaign, so it is not entirely clear how his administration will treat them. He ran on a campaign to help blue-collar workers, so it is possible that he will continue the trend toward restricting their use for low-wage workers. It seems more likely, however, th...

On Monday, a unanimous three-judge panel ruled that workers who sue for retaliation under the Fair Labor Standards Act (FLSA) may recover emotional damages, but not their spouses.  The 5th Circuit Court of Appeals joins the 6th and 7th Circuits in allowing for the recuperation of emotional damages for retaliation claims under the FLSA.  The 5th Circuit in Pineda v. JTCH Apartments LLC upheld a 2015 jury verdict, in the Northern District of Texas, of over $5,000 in an overtime wage and retaliation suit.  The case went like this.  A married couple, Santiago Pineda and Maria Pena, lived in an apartment where they would get reduced rent for maintenance work Pineda would do in and around the apartment building.  The rent reduction, though, did not account for overtime worked by Pineda. He filed suit against JTCH Apartments for unpaid overtime in the Northern District of Texas.  Soon after the suit was filed, Pineda and Pena were put on notice to vacate the...

On appeal from the District Court of the Northern District of Georgia, the Eleventh Circuit has affirmed that an unsuccessful applicant cannot apply a disparate impact cause of action under the Age Discrimination in Employment Act (ADEA) for employment if they do not hold a status as an employee.  In the recent decision made in Villarreal v. R.J. Reynolds Tobacco Co. , the applicant, Richard Villarreal, was passed up for the position as territory manager at R.J. Reynolds Tobacco Company based on a set of hiring guidelines that the company implemented.  The guidelines described the targeted candidate for the specific position as someone who is 2-3 years out of college, someone who adjusts easily to changes, and to stay away from applicants who have been in sales for 8-10 years.  Two years after Villarreal was denied employment based on these factors, he filed a charge with the EEOC.  Two years after that, he was granted his right to sue and brought a collective actio...

New year, new employment laws. Yesterday we identified a number of new employment laws set to take effect in 2017. Today we continue that list. The Victims Economic Safety and Security Act (VESSA) Effective January 1, 2017, the Act will expand its reach and cover 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 dom...

As the New Year quickly approaches, employers should be aware of new employment laws that have recently become effective, or soon will be.  Here is part one of a brief overview of new legislation that may affect employers: The Personal Information Protection Act New amendments to the Personal Information Protection Act will become effective January 1, 2017.  An entity that collects an Illinois resident’s personal information is required to implement reasonable security measures that protect that information.  An entity that has contract regarding the disclosure of personal information must include a provision that requires the implementation of such security measures.  The entity must provide the individual with notice in the event of a breach.  The amended Act also provides certain reporting requirements for entities subject to the federal Health Insurance Portability and Accountability Act of 1996. The Act now covers medical information, health insura...

In Carroll V. Delaware River Port Authority , a recent case from the Third Circuit, the Court addressed whether, in sustaining a discrimination suit under the Uniformed Services Employment Act (USERRA), a claimant must plead and prove that he or she was objectively qualified for the position sought. Plaintiff, Anthony Carroll, sued the Port Authority after it declined to promote Carroll to sergeant.  Carroll was employed as a police officer by the Port Authority in 1989 and simultaneously held positions in the United States Navy and the Pennsylvania National Guard.  In early 2009, Carroll was deployed to Iraq where he sustained injuries which lead to brain injury, high-frequency hearing loss, degenerative disk disease, and other conditions.  Carroll returned to the United States in 2009 and was in rehabilitation until he was honorably discharged in 2013.  In 2010 and 2012, while Carroll was on active-duty status in rehab, he applied for a promotion to sergeant w...

Jingle bells, jingle bells, a lawsuit on its way! Alcohol, colleagues, and those holiday work parties are the perfect ingredients for unwanted employer liability and litigation. Personal injury and sexual harassment claims are merely examples of what might arise from a holiday work party. Alcohol is often a staple at holiday parties, but; an employer’s liability as a result of overindulgence may depend on whether attendance at the party is mandatory.  In Stephenson v. Universal Metrics, Inc. , a motorist’s estate attempted to hold an employer liable after its employee became drunk at a work-sponsored function and, on his way home, killed both himself and another motorist.  Luckily for the employer, the Wisconsin Supreme Court held the employer was immune from liability under Wis. Stat. § 125.035. Similarly, in Saylesv. Piccadilly Cafeterias, Inc. plaintiff was permanently injured in a two-car accident after he was struck by one of defendant’s employees.  The...

The Equal Employment Opportunity Commission (EEOC) recently updated its guidance on national origin discrimination . Employers are prohibited from discriminating against an employee based on his or her national origin (i.e. country of birth or the country from which one’s ancestors arrived) by Title VII of the Civil Rights Act of 1964. The EEOC, which enforces Title VII, has periodically provided guidance to employers on how to comply with the law. This was the first time that the agency had updated its guidance on national origin discrimination since 2002, and the updates are intended to address cultural changes that have taken place in the workplace since then. Here are some important takeaways for employers from the guidance: It is illegal to discriminate against someone based on a perception that he or she came from a certain part of the world, even if that perception is untrue. So, it would be illegal for an employer to refuse to hire someone because the employer thinks he...

Paid sick leave is one of the hottest employee benefits this year, with a number of municipalities, including Chicago, some counties, including Cook County, and a handful of states enacting 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 Illinois Employee Sick Leave Act (P.A. 099-0841) will require employers to allow employees to use their 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...

The 7th Circuit Court of Appeals heard, and ruled against, claims by two former members of the University of Pennsylvania track and field team. The former athletes alleged that they were employees of their college or the National Collegiate Athletic Association (NCAA). The significance here is that being an “employee” entitles workers to minimum wage protections, set out by the Fair Labor Standards Act. The 7th Circuit’s disallowance of the athlete’s employee status relied partially upon the Field Operations Handbook by the Department of Labor. The handbook posits that college students are not “employees”, simply because they participate in extracurricular activities. It was argued that when you look at the activity as a whole, the athletes are putting in the amount of time and effort to be afforded employee status. The opinion pointedly said that college athletes participate for reasons “wholly unrelated to immediate compensation.” Going on to say, the athletes spend a tremen...

  On November 18, 2016, the United States Court of Appeals for the Sixth Circuit issued its decision in the case of UAW v. Hardin County, Kentucky .  In that case, the Fiscal Court of Hardin County (the County Board), passed a right-to-work ordinance prohibiting any private sector agreement that required an employee to join or remain a member of a union, pay any kind of dues or assessments to the union, or to pay to a charity or other third party any amount equivalent to union dues.  The ordinance also purported to regulate “hiring hall” arrangements – requiring prospective employees to be referred through a union hall – and dues checkoff provisions – allowing employers and unions to agree to deduct union dues from the wages of consenting employees.  In February, 2016, the federal district court that first ruled on the case had determined that all three elements of the ordinance – the “right-to-work” element, the “hiring hall” element, and the “dues checkoff...

The 2nd Circuit Court of Appeals recently affirmed a decision by the NLRB which held that the employer in the case of Manhattan Beer Distributors, LLC v. NLRB violated federal labor law when it refused to delay a reasonable suspicion drug test because no union representative could be on site to advise the employee when the testing was ordered, and then discharged the employee when he refused to take the drug test without a union representative present. In this case, a company representative noted that employee Joe Diaz “rocked the smell of marijuana” when he reported to work one day. As a result, Diaz was ordered to immediately report for drug and alcohol testing pursuant to the reasonable suspicion testing provision of the parties’ collective bargaining agreement. The employee, while stating that he had no objection to taking a drug test, also invoked his Weingarten rights, demanding that he consult with a union steward prior to reporting for testing. The employer agreed. The...

The IRS recently announced the contribution limits to 401(k) plans for 2017. You can view the IRS announcement by clicking here .  Important takeaways for employers from the announcement include: The amount of money that employees under 50 can contribute to their 401(k) plans remains unchanged at $18,000. The amount that employees over 50 can contribute also remains unchanged at $24,000. The levels remain unchanged due to the small increase in inflation over the past year. The amount that employers can contribute to a 401(k) plan increased slightly from $35,500 to $36,000, and the total amount that can be contributed to a 401(k) plan increased from $53,500 to $54,000. Here is a table listing the contribution limits to 401(k) plans going back to 2011: Year  Employee  Contribution  Limit Maximum Employer Contribution Maximum for All Contributions Catch-up Amount 2017 $18,000 $36,000 $54,000 $6,000 ...

As expected, last week the Department of Labor filed an appeal from the temporary injunction issued right before Thanksgiving putting a hold on the new overtime rules which were set to take effect last Thursday. As we previously noted, though, the Texas federal court issued that temporary injunction while it considers a ruling on the legality of the new overtime rule as a whole. Twenty one states and a number of businesses sued the Department of Labor claiming that the DOL exceeded its authority when it issued the new overtime rule that more than doubled the minimum salary threshold for executive, administrative and professional exemptions to the FLSA overtime requirement along with building in a periodic automatic increase of that threshold tied to the cost of living. In its appeal, the DOL requested an expedited timetable from the court. Those familiar with legal proceedings will not be surprised to learn that in seeking to fast track the case, the DOL suggests that the case...

In the past few weeks, some very unusual things have happened.  Donald Trump was elected president, proving that anything is truly possible; a federal judge in Texas threw a wrench into the workings of the FLSA salary threshold changes previously scheduled to take effect today; and last but not least, an Illinois appellate court issued a PSEBA decision that was positive for, drum roll please, employers.  That’s right.  Get up off the ground.  I did actually say that an Illinois appellate court has ruled in favor of a public employer in a PSEBA case.   As most of you already know, the Public Safety Employee Benefits Act (“PSEBA”) provides basic health care free of charge to a list of catastrophically injured public safety employees and their families, typically sworn firefighters and police officers.  While we all agree that a truly catastrophically injured police officer or firefighter is absolutely entitled to these benefits, as with any entitlement be...