The Workplace Report with Ancel Glink

A Texas employer investigated one of its employees; who was rumored to be selling porn in the workplace. The rumors turned out to be true when five pornographic DVDs were found in the employee’s locker. The employee was fired, and everyone moved on with their life. There is nothing illegal about firing an employee for selling porn at work, right? Apparently there can be. In a recently published opinion , a federal appellate court found the employer to be liable for retaliation despite having a legitimate reason to fire the employee. The case holds some important lessons for employers about when they can begin to investigate an employee. The case involved an African-American man and his white supervisor who got into a verbal tiff one day on the factory floor. During the tiff, the supervisor said, “Boy, I don’t know why every time I come over here it’s a hassle!” The employee complained to HR, claiming that the supervisor used “boy” as a racial epithet. HR eventually determine...

Let’s say that you have a union employee who was unhappily separated from his job and now has, among other issues, a dispute with you, his former employer, over whether he received his proper final compensation.  Being the unhappy soul that he is, and being highly skeptical that you, his now former employer, has calculated the correct amount of payout as his final compensation, he files suit against you under the Illinois Wage Payment and Collection Act , claiming that you violated the Act by failing to properly pay him all wages and compensation that was due to him no later than the next regular pay day after his separation, as the Act requires. First of all, the Wage Payment and Collection Act is one of those wage statutes that you, as an employer, don’t want to get caught up in. It is what we call in the business a “ strict liability ” statute. If an employer doesn’t follow the wage payment requirements of the Act, little or no defenses exist to a claim. It doesn’t matter t...

It should come as little surprise that President Trump withdrew the “dear colleague” letter issued by former President Obama which advanced the position of both the Departments of Justice and Education that Title IX protections extended to student gender identity issues and sparked the discussion of whether schools must allow students to use the bathroom that aligned with the gender identity and not their assigned gender. The question is whether Trump’s action serves as a bellwether to a shift in transgender rights issues in the nation. Last year saw record breaking advancement of transgender rights across the U.S., with some states becoming deeply divided on the issue. The key components of support for protection of transgender rights in the law centered on, among other actions, the EEOC’s position that transgender rights are included in the prohibition against gender discrimination. The Obama administration also actively advanced transgender rights by issuing a series of execu...

The 7th Circuit recently held that the First Amendment did not protect a police officer’s speech regarding police misconduct, nor was the officer entitled to due process for reputational harm.  The case, Roake v. Forest Pres. Dist. of Cook Cty. , No. 16-2976, 2017 WL 655430 (7th Cir. Feb. 17, 2017), was initiated by a former county forest preserve district police officer, Roake, who claimed that the forest preserve unlawfully retaliated against him for reporting police misconduct and harmed his reputation; what he claimed to be a violation of his procedural due process rights. Roake had been subject to a disciplinary hearing after he brought champagne to the forest preserve police station to share with colleagues on New Year’s Eve.  Despite being told by the interviewing officer at the hearing that he would not lose his job but might receive a one or two day suspension, Roake resigned, claiming that he would had been terminated if he hadn’t.  Roake claimed that the h...

Employers that fire employees for taking protected medical leave under the Family Medical Leave Act (FMLA) can be held liable for retaliation claims. But what about when there are other legitimate reasons for the employee’s termination? The 2nd Circuit Appeals Court will hear oral arguments on Thursday in the case of Woods v. START Treatment and Recovery Centers, Inc. on whether to allow FMLA retaliation claims when the alleged retaliation is motivated only in part because of the employee’s FMLA leave. Woods’ allegations go as follows. START hired her in 2007 and she put in a request for medical leave for her anemia in 2011. Woods subsequently withdrew her request because her supervisor had warned her she was needed at work. She later fell ill and was hospitalized. In 2012, Woods was put on probation and was disallowed from taking medical leave during her probation. Soon after her probation began, Woods claims she collapsed on a subway train. She was hospitalized for six days, an...

In a relatively surprising development last week, President Trump’s nominee to lead the Department of Labor (DOL), Andy Puzder, withdrew himself from consideration. The President moved swiftly to nominate Alexander Acosta to fill the position. Mr. Acosta is the dean of Florida International Law School, and has served on the National Labor Relations Board (NLRB) and as assistant attorney general for the Justice Department’s Civil Rights Division. Unlike Mr. Puzder, whom many deemed to have a pro-business ideology, Mr. Acosta is widely seen as having a more centrist viewpoint. During his time on the NLRB he ruled in favor of both employers and workers. For example, he ruled that Kroger violated the National Labor Relations Act by prohibiting its employees from discussing union issues during working hours. However, he also ruled that Bell Atlantic could prohibit employees from wearing union T-shirts that depicted workers as road kill being run over by a truck bearing the company’s lo...

You have to wonder about legislation that is amended within the first month of its enactment. How flawed is it if the legislature is already fixing it? That’s just what has happened with the Employee Sick Leave Act, which only took effect on January 1 st of this year. In a way, employers should be grateful because the amendments have answered a couple of important questions about the Act. Two of the simpler amendments are expansion of the list of family members for whom an employee may now use their sick leave to care for. The list now includes stepchild and domestic partner. Pretty much the only family missing now is the dog or cat. Additionally, the amendments specifically exclude employees of railroad from coverage under the Act. The rest of the amendments are a little trickier. For instance, the amended Act expands the sick leave benefits covered by the Act to “any paid or unpaid time available to an employee as provided through an employment benefit plan or paid time of...

As we previously discussed, the Illinois Attorney General filed a motion in St. Clair County Circuit Court seeking to dissolve a preliminary injunction that required the Comptroller to authorize payment of state employees’ full wages in the absence of a budget. Yesterday evening, a St. Clair County judge denied that motion effectively averting a shutdown of Illinois government by permitting state employees to continue getting paid despite the absence of a state budget. And in an odd twist, the Governor’s attorneys stood alongside AFSCME attorneys in arguing that state employees pay should continue unabated. In seeking to dismiss the Illinois Attorney General’s position, both the Governor and AFSCME’s attorneys argued that the General Assembly had, in fact, “sanctioned” the initial order, in a single sentence of an 800-page stopgap budget which stated "All appropriation authority granted in this Act shall not supersede any order of any court directing the expenditure of funds...

The Labor and Employment Attorneys of Ancel Glink are  Here to Prepare You For New Employment Law Changes When: March 8, 2017, 8:30 a.m to 11:15 a.m. Where: Bridges of Poplar Creek Country Club (1400 Poplar Creek Drive, Hoffman Estates, IL 60169) Who:  All local governmental officials, managers, administrators or directors What: As we get settled into the New Year, employers need to be aware of new employment laws that have recently become effective, or soon will be. Employers also should be aware of the important cases to keep tabs on and what to expect under the new administration.  In this no-cost "breakfast briefing," the labor and employment attorneys from Ancel Glink will explain the new laws and how to apply them to your employees so that you stay in compliance with state and federal laws. We will discuss topics such as: The myriad of new local and state leave benefit laws; Who gets what? Is your "use it or lose it" policy still va...

The EEOC recently filed an appeal with the 6th U.S. Circuit Court of Appeals regarding the termination of a transgender employee.  Daniel Wiessner, from Reuters Legal, reported that this “case is the first to reach a federal appeals court in which a company says that under the Religious Freedom Restoration Act (RFTA), it was not liable for sex discrimination against an LGBT worker because of its owners' religious beliefs.” Back in 2014, the EEOC brought a sex discrimination action against R.G. & G.R. Harris Funeral Homes, Inc. (the Funeral Home); alleging that the Funeral Home unlawfully terminated a transgender employee based on gender stereotypes.  The EEOC claimed that Title VII , which prohibits employment discrimination on the bases of race, color, religion, sex, or national origin, also prohibits employment discrimination on the bases of transgender status or gender identity.  EEOC alleged that the Funeral Home terminated an employee, Stephens, “because St...

Kentucky and Missouri have become the 27th and 28th right-to-work states. Kentucky passed its right-to-work law last month, while Missouri passed its right-to-work law earlier this month. As seen in the map below, almost the entire southern and middle parts of the country have right-to-work laws in place. A right-to-work law prohibits employees from being required to join unions or to pay union dues. Opponents of right-to-work laws argue that they are a solution to the free rider problem, where all employees, whether or not they are union members, receive the advantages resulting from union negotiation like higher wages and more time off.  Proponents of right-to-work laws argue that they permit freedom of association and contract by not forcing unwilling employees to join unions. Right-to-work laws are generally favored by business, as they limit the financial contributions to unions. Kentucky also repealed its prevailing wage law, which required wages paid for constructio...

The Illinois Supreme Court recently weighed in on whether a union employee could waive arbitration rights set forth in a labor contract. The Village of Bartonville v. Lopez , concerned a law enforcement officer, Lopez, employed by the Village of Bartonville, who received a complaint for termination from his commanding officer.  Unless otherwise negotiated in a labor contract, the Illinois Municipal Code provides a police officer who has been discharged with an impartial hearing to be commenced within 30 days of the filing of a complaint for termination.  At that time, there was a labor contract in effect between the Village and its police officers which addressed a grievance procedure involving grievance arbitration.  The labor contract’s had a separate section addressing discipline; however that section was silent in regards to the arbitrability of discipline. Soon after that complaint for termination was filed against Lopez, the Village’s attorney reached out ...

Every employer knows that sexual harassment cannot be tolerated in the workplace. But, fortunately for employers, the courts understand that not every instance of inappropriate behavior is actionable. Take the case of Shirley Moore v. Wal-Mart , decided yesterday by the Northern District of Illinois Court. In this case, the plaintiff was employed by Wal-Mart as a sales associate to work at a Wal-Mart store in Lansing, Illinois. Her supervisor was Robert Rudd, an assistant manager. Moore alleged that between January 2013 and April 2013, Rudd regularly made statements to Moore, including that her pants fit nicely and if she would look into his eyes she would know how what he meant to say. Moore believed those to be of a sexual nature. Rudd also allegedly touched her on the thigh in an incident where he was counseling and comforting her about her financial problems as she was applying for employee financial assistance from a company program. At that time, the plaintiff said that he a...

Issued on January 27, 2017 just a week after President Trump took office, Executive Order 13769 has disrupted travel and drew protests at the nation’s airports by suspending entry for people from seven predominantly Muslim countries and limiting the nation’s refugee program. It has also engendered an onslaught of litigation in almost every federal circuit in which various stakeholders have sought to enjoin and overturn the Executive Order on the basis that it violates immigration laws and the Constitution. Yesterday, the U.S. Court of Appeals for the Ninth Circuit heard arguments in State of Washington v. Trump , the case that has become the epicenter of the challenge when a Seattle federal court issued a nationwide injunction barring enforcement of Executive Order. The case is in its earliest stages, and the question for the Ninth Circuit yesterday was a narrow one: Should it stay the district court’s temporary restraining order and reinstate the travel ban while the case procee...

The big news of last week was President Trump’s decision to nominate Judge Neil Gorsuch to a seat on the Supreme Court. Judge Gorsuch is a respected conservative judge with over a decade of experience on the appeals court, so we have a pretty good idea of what his judicial philosophy is. Keeping that in mind, what can employers expect out of Judge Gorsuch once he ascends to the highest court? Gorsuch, who many have remarked seems like a younger version of the justice he replaces, Antonin Scalia, has compared his role as a judge to that of the “instant replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by the call.” Laborers' Int'l Union of N. Am., Local 578 v. N.L.R.B. , 594 F.3d 732, 739 (10th Cir. 2010). Like Scalia, he is a committed textualist, which means that he will apply a statute as it is written, and not read anything into it tha...

The following is a re-post of an article by Julie Tappendorf from The Municipal Minute , an Ancel Glink local government blog that she edits... In 2013, a Virginia police department adopted and implemented a social media policy for its police officers. The policy, among other things, prohibited police officers from posting negative comments about (1) the internal operations of the department and (2) specific conduct of supervisors or co-workers that would impact the public perception of the department, stating that such comments were not protected by the First Amendment. The policy also stated that while officers could comment on matters of general or public concern, the comments could not disrupt the workforce, interfere with working relationships or workflow, or undermine public confidence in the officer. Relying on the social media policy, the department disciplined two officers for Facebook posts they made about co-workers, supervisors, and the department while off-duty. ...

Last week the 7th Circuit Court of Appeals disappointed employers and other stakeholders who were anxiously awaiting its decision on the merits in the case of EEOC v. Flambea, Inc. Back in 2014, we reported on this case as the first of its kind to address the issue of whether participation in the company sponsored health insurance plan contingent on a medical evaluation through its wellness program violated the ADA. The EEOC alleged that the employee of Flambeau, Inc., in Baraboo, Wisconsin, was hospitalized with a heart condition at the time that his employer mandated that all employees receiving employer sponsored health insurance undergo biometric testing and a health risk assessment as part of their wellness program. Part of the biometric testing and risk assessment required employees to, among other things, undergo tests and disclose medical history that would reveal conditions covered by the ADA that were not job related. Moreover, the employer had a policy that any empl...

There are right ways to root out FMLA abuse, and then there are the ways that put employers at risk of writing big checks to an employee.  Here’s an unfortunate example of the latter: In Diamond v. Hospice of Florida the plaintiff, Jill Diamond was a nurse working at a hospice facility. When her own parents became ill and needed her help to care for them, she requested and began taking intermittent FMLA leave in 2013, concurrently using her PTO time as required by policy. The company would routinely send her warning notices that her PTO time was running low with a reminder to avoid unpaid absences (not a great idea). In March of 2014, upon learning of her mother’s serious health issue, she requested the following day, Friday and the next Monday as FMLA leave.  This leave was approved. Upon her return, she was told that she needed to obtain an updated FMLA medical certification (which is fine) and at the same time was told that if she was working another job that sh...

In a move that may facilitate an end to Illinois’ long-running budget entanglement, by initiating either a shutdown or a compromise, on January 26, 2017, Illinois Attorney General Lisa Madigan filed a motion in St. Clair County Circuit Court seeking to dissolve a preliminary injunction that required the Comptroller to authorize payment of state employees’ full wages in the absence of a budget. The motion filed by the Illinois Attorney General asked the judge to terminate his order on February 28, 2017 to give the General Assembly and the Governor additional time to enact a budget before the injunction is dissolved. As has been chronicled over the past two years, Illinois continues to operate without a budget to fund many services provided by vendors and grantees. For more than a year and a half, the State has operated under a temporary court order entered by the St. Clair County Circuit Court requiring the Comptroller to authorize payment to all state employees at their normal rat...