The Workplace Report with Ancel Glink

The U.S. Supreme Court passed up an opportunity to resolve a hotly disputed aspect of employment law when it refused to hear an appeal from the Eleventh Circuit Court of Appeals on whether sexual orientation discrimination is illegal under Title VII.  The denial of certiorari effectively leaves in place an Eleventh Circuit ruling that Title VII of the Civil Rights Act of 1964 does not cover discrimination based upon sexual orientation. In a 2-1 decision, the Eleventh Circuit held in Evans v. Georgia Regional Hospital that the plaintiff Evans, a former security guard for the defendant hospital, could not sue her former employer for sexual orientation discrimination because “sex” as used in Title VII does not mean sexual orientation. Interestingly, the Eleventh Circuit acknowledged that Evans was denied equal pay or work and harassed, but affirmed the dismissal of her sexual orientation claim. It is important to emphasize that the petition for review did face procedural complica...

A class-action lawsuit filed in California last week alleged that hundreds of large employers, like T-Mobile, Amazon, and Cox Communications, engaged in illegal discrimination by targeting advertisements for job openings only to younger employers. The lawsuit claims that this is a violation of the Age Discrimination in Employment Act (ADEA), which prohibits employers from discriminating against a worker or job applicant 40 or over because of his or her age.  The lawsuit alleges that employers who post ads on Facebook can choose the ages of those who see their ads. They can run ads that only show up to users who are aged 18-38, 22-45, or 21-55. The lawsuit claims that when an employer runs ads that can only be seen by younger employees, this violates the ADEA.  This lawsuit is the latest attack on Facebook’s practice of “micro-targeting,” which permits advertisers to send ads to very specific segments of the population. Facebook has been criticized for allowing adve...

The big news of this week is that Congress stands poised to pass the biggest overhaul of the tax code in more than thirty years. As we have discussed , this overhaul should be pretty good for employers. It will significantly reduce the tax rate for both businesses and partnerships, and implement business-friendly deductions like those for investments into capital goods. One provision I noticed, made it into the final bill that has not received much attention is a tax credit for paid family leave. This provision offers businesses a tax credit for wages paid to employees who take up to 12 weeks of paid family leave. The tax credit is equal to 25% of the amount of wages that an employer pays the employee on leave. So, if an employee is paid $10,000 during his or her 12 weeks of family leave, then the employer will receive a tax credit of $2,500. The employee on leave must be receiving at least 50% of his or her wages during the leave for the employer to qualify for the tax credit. Th...

Continuing to swing to more employer friendly decisions, the National Labor Relations Board reversed its rulings of just a few short years ago on workplace policies. Previously, the NLRB issued its Lutheran Heritage ruling, creating broad brush standards for determining whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfered with an employee’s exercise of rights protected by the National Labor Relations Act . Using this test, the NLRB determined that employers violated the NLRA when workplace rules could be reasonably interpreted to prohibit protected activities. Employers scrambled to revise their policies to ensure not only that they were facially neutral but that they also could not be reasonably interpreted to interfere with employees’ workplace rights. Under the NLRB’s new ruling, established in The Boeing Co. and Society of Professional Engineering Employees in Aerospace IFPTE Local 2001 , the Board will evaluate these s...

On December 14, 2017, the National Labor Relations Board overturned the Obama era rule that held larger employers and companies responsible for labor law violations by their franchisees and subcontractors.  The rule was known as the “joint employer rule” and it allowed employees to sue companies that offer franchises for violations of the franchisees even though the parent corporation had only indirect or minimal control over the employees. The rule also would allow employees of a franchisee to negotiate with the parent corporation instead of the franchisee.  The same would apply to subcontractors.  This rule resulted in an unfair burden to large corporations and small businesses alike by clouding the employer/employee relationship. Earlier this year , the NLRB revoked guidance that made franchise companies and franchisees liable for violations of wage and hour laws.  This latest change puts an end to the last vestiges of the joint employer rules that were ...

The part-time faculty union and Columbia College are in the middle of contract negotiations for a successor collective bargaining agreement.  The union, Part-Time Faculty Association of Columbia College (“PTFA”), was one of the first in the nation to represent part-time faculty at a private college.  Those negotiations, however, have led to more than a disagreement over contract issues.  The PTFA voted for and held the two-day strike at the end of November over the unresolved bargaining issues.  The focal point of the union’s two-day strike was an administrative proposal concerning job security.  While the union maintains the proposal would contractually strip them of job security, seniority in class assignments, and academic freedom, the administration for Columbia College has asserted that other factors than seniority should be considered in determining class assignments, such as outside professional expertise.  Although the negotiations resumed, to date...

Last week, the U.S. Department of Labor (“DOL”) proposed a rule that would rescind an Obama-era regulation that prohibits tip-pooling. Tip-pooling occurs when servers share their tips with cooks, dishwashers, and other restaurant staff. Under the current Obama-era regulation, passed in 2011, employers cannot require servers and other employees receiving tips to share those tips with other employees who do not receive them. The proposed rule will change this, allowing employers to require tipped employees to share those tips with other employees. Under the Fair Labor Standards Act (FLSA), employers can take a “tip credit,” which allows them to pay employees who receive tips less than the minimum wage, as long as their tips will increase their hourly rate to more than the minimum wage. Under the DOL’s new rule, employers can elect not to take the tip credit and pay all employees at least minimum wage. The employer can then require tips to be distributed to other employees, as these...

The EEOC has recently focused more of its enforcement efforts on sexual orientation discrimination in the workplace.  It’s efforts in this regard recently paid off in EEOC v. Scott Medical Health Center, P.C. In Scott Medical Health Center, P.C. , the court held that sexual orientation is a form of sex discrimination prohibited by the same gender discrimination prohibitions set forth in Title VII of the Civil Rights Act .  What this means for employers is that more of these cases are likely to be filed by the EEOC and individual plaintiffs.  And with the U.S. Supreme Court about to hear the case of a Colorado baker who refused to bake a wedding cake for a gay couple, the issue of sexual orientation will be in the forefront in the national media moving into 2018. In Illinois, there have long been protections against discrimination based upon sexual orientation, and this may lull Illinois employers into thinking that since prohibitions on this type of discriminatio...

This past Wednesday, the White House urged the Supreme Court of the United States to find that requiring government employees to pay mandatory union dues is a violation of the individual public employees’ First Amendment rights.  The Trump Administration filed a brief conveying that contention in Janus v. American Federation of State, County and Municipal Employee , a case on appeal from the Seventh Circuit. In Illinois, public sector employees who have jobs that are represented by a union but who have declined to join the union, are often required to pay for collective bargaining activities, regardless of whether he or she supports that activity.  Janus involves a non-union Illinois government employee, Mark Janus, who was required to pay a “security fee” as a condition of his employment.  In Janus , the Supreme Court will address whether Abood v. Detroit Board of Education, 431 U.S. 209 (1977) , a case which upheld the constitutionality of these mandatory fees, ...

Late last week, Peter Robb, the National Labor Relations Board’s new General Counsel (“GC”), issued a memorandum identifying the types of charges which should be submitted to his office for advice.  As the new GC, Robb has significant authority to establish new NLRB priorities and initiatives. In his memorandum, Robb identifies examples of cases which should be submitted for advice, including certain Obama-era decisions.  He states, “[e]xamples of Board decisions that might support issuance of complaint, but where we also might want to provide the Board with an alternative analysis...” .   Those examples, in part, include the following: Concerted activity for mutual aid and protection, such as “[f]inding no loss of protection despite obscene, vulgar, or other highly inappropriate conduct” Purple Communications , which permits corporate e-mail to be used for union-organizing and avenue to complain about work; Common employer handbook rules, such as rules b...

How bad must off-duty social media behavior be in order for a public employer to justify discharging an employee for their posts? In true lawyer fashion, the answer is probably  “it depends”. It depends on the position that the employee holds within the organization and the content of the postings on social media. Since officers hold a special position of trust in society, police departments rightfully require that their conduct fosters that trust and models law-abiding, respectful behavior. That’s why the Chicago Police Department has moved to discharge a 25 year veteran officer for his off duty social media posts. There is no doubt that policing, especially in urban areas like Chicago, can be challenging and officers can develop jaded views of society, but when an employee takes to social media to disparage groups it can lead to trouble on the job. The CPD officer facing discharge allegedly posted racist and insensitive remarks on Facebook, including a cartoon of a boy ...

Bashing your employer anonymously online likely has become harder thanks to a recent case out of Arizona. The case involved Glassdoor , a website which allows employees to post anonymous reviews about their employers. Glassdoor initially refused to turn over information asked for by the federal government, which is investigating a contractor’s possible defrauding of the Veterans’ Administration (“VA”). This information included the usernames, email addresses, IP addresses, and even the credit card information of users who claimed that the contractor was overcharging the VA. Glassdoor refused to turn over this information because it argued that doing so would violate users’ First Amendment rights of anonymous speech and freedom of anonymous association. The court rejected both of these arguments. It found that the government sought this user information in good faith, as it was necessary for the investigation they were conducting. It rejected Glassdoor’s argument that refusing to ...

Quote of the Day "It's probably best not to mention the racial incident of the past in the formal human resources review, so people don't think you can't let go of the past" - a senior vice president of Mount Aloysius, a college being charged with retaliation. It’s probably best not to discuss an employee’s past, protected activity, let alone in writing. The Gist of the Case Mr. and Ms. Brugh, a husband and wife employed at the same Pennsylvania college, filed suit against their employer, alleging that the college violated Title VII of the Civil Rights Act. Mr. and Ms. Brugh, both fired in 2012, claim that the college terminated them because Mr. Brugh participated in racial discrimination lawsuits which were filed against the college approximately 20 years earlier.  The college argued that the Brughs failed to state a claim for retaliation; the statute of limitations had past; and the retaliation claims were barred because the claims has already been j...

If it’s not obvious to employers already, sexual harassment appears to be unabated in the workplace despite laws prohibiting it in place for decades. Many opine that #metoo and the daily revelations of sexual harassment accusations by well known celebrities represent a break in the flood gates sure to continue beyond high profile accused and accusers. If any employer believes that their workplace is immune from sexual harassment, that employer might be hiding its proverbial head in the sand. The first thing we should understand from the daily reports of new harassment allegations is that no one and no workplace and no person is immune. The EEOC issued the results of an 18 month survey on workplace sexual harassment last year. Not surprisingly, it identified that almost one third of the approximate 90,000 claims it received in 2015 included a sex based harassment charge. Additionally, one survey result led them to the conclusion that three out of four victims of sex based harassme...

Residency requirements are hugely unpopular among police officers.  On one hand, police officers believe their work should guarantee them the freedom to live where they can best provide for their needs and the needs of their families. On the other hand, public employers believe police officers should live within, and be an integral part of, the communities they serve and protect. In 2016, the City of Springfield passed an ordinance requiring all non-union employees hired after January 1, 2017, to live within the city limits or move here within 12 months of being hired. Under the ordinance, existing employees who already live outside the city would not be required to move.  The City previously had a full residency requirement from 1976 up until 2000, when the prior ordinance was repealed. A version of the ordinance remained in effect that required certain members of the mayor’s administration to live in the city.  The ordinance was unpopular with many of the City’s c...

CLIENT ALERT Public Act 100-0554 was signed by Governor Rauner and became law on November 16, 201 7. In the wake of renewed awareness that sexual harassment remains prevalent in the workplace, the new law expands traditional protections against sexual harassment in employment by extending the scope of the law's prohibitions, by increasing penalties imposed on sexual harassers, and by providing new avenues of recourse for victims of sexual harassment. It also imposes new obligations on units of local government. Perhaps most significantly, the definition of "sexual harassment" in the new law does not require the existence of an employment relationship in order to be actionable. For municipalities, park districts, school districts, townships, libraries, and other units of local government, the law requires each entity to adopt an ordinance or resolution establishing a policy to prohibit sexual harassment within 60 days of the new law, or by January 16, 2018 . W...

While allegations of sexual harassment by our nation’s leaders dominated the headlines (again) last week, many may have missed a rather significant development: the passing by the House of a bill that would make pretty significant changes to our tax system. The Senate is currently working on its own tax reform bill, and there seems to be a real possibility that this Congress will pass tax reform. The House and proposed Senate tax bills make pretty major changes in the way that businesses are taxed. Here are some of the most important proposed changes: 1. Major Cut to the Corporate Income Tax Rate. The House bill cut income tax rates for corporations from 35% to 20%. This is a flat rate that applies to corporations of all sizes, unlike the current system where small businesses pay a lower tax rate. The bill also increases the amount of deductions that can be taken under section 179 of the Income Tax Code, which permits small businesses to deduct capital expenditures. The bill in...

To say that our current political climate is surreal is an understatement similar to “ Houston, we have a problem ”  and the weirdness continues on unabated.  In a new and comical twist, a woman in Virginia has been fired from her job with a government contractor for giving President Trump’s motorcade the finger . This case is interesting from an employment law standpoint for a variety of reasons.  Apparently the employee in question worked for a private company, but the company is a government contractor.  She was riding her bicycle in Virginia when Trump’s motorcade passed by her as he was leaving his golf club.  She said that, at the time, all she could think was that the DACA program was ending and immigrant children (“Dreamers”) were being kicked out of the country, ads for Obamacare were being pulled by the Trump administration impeding people’s right to sign up for healthcare, Puerto Rico is in the dark and our president is playing golf…again. ...

A recent Illinois court opinion confirms that privacy provisions within a collective bargaining agreement cannot usurp state law, particularly the Illinois Freedom of Information Act . In City of Chicago v. FOP, Chicago Lodge No. 7 , No. 16 CH 9793 (October 18, 2017), the Circuit Court granted the City’s petition to vacate an arbitration award that required the City to destroy disciplinary files that were over five years old that were the subject of a FOIA request. The opinion reinforces the well-defined and dominant public policy to preserve government records that is reflected in FOIA. By way of background, in 2015, the FOP filed two grievances claiming that the City had violated the collective bargaining agreement by releasing disciplinary records that should have been destroyed after five years pursuant to Section 8.4 of the collective bargaining agreement . Section 8.4 is the direct opposite of transparency because it provides for the destruction of documents related to the i...

Being a government employer can be tough. While private sector employers have great leeway in what they can discipline employees for, like holding political beliefs contrary to their own or even being a Green Bay Packers fan , government employers do not have such liberties. Government employers cannot discipline an employee for speaking on “a matter of public concern.” This means that a government employee cannot be disciplined for commenting on any type of broad social or policy issue that is not directly related to his or her employee. So, a government employee cannot be disciplined for stating that he or she would like to see the President assassinated . Nor can a DMV employee be disciplined for stating the DMV wastes taxpayer money . Instead, a government employee can only be disciplined for expressing personal grievances that comment on the day-to-day minutiae of the job, and do not address broader matters of public concern. In a recent case , a court found that a profes...

The October 12, 2017 Presidential Executive Order Promoting Healthcare Choice and Competition Across the United States has been greeted with a lot of political rhetoric about its effects, primarily with respect to the Patient Protection and Affordable Care Act (ACA).  But let’s talk about what it does, and doesn’t , do. The Executive Order states that:  “[i]t shall be the policy of the executive branch, to the extent consistent with law, to facilitate the purchase of insurance across State lines and the development and operation of a healthcare system that provides high-quality care at affordable prices for the American people”. The Order directs the relevant departments of the Executive Branch (primarily the departments of Labor, Treasury, and Health & Human Services) to “consider” proposing regulations to enable and expand the availability of association health plans (AHP’s), short-term, limited-duration insurance (STLDI), and health reimbursement arrangemen...