The Workplace Report with Ancel Glink

Given the fact that, despite Republican efforts in Congress, the ACA has not been repealed or replaced, it appears that the ACA will be with us for some time yet.  Following is a listing of ACA developments and deadlines that you may wish to keep in mind for 2017: Information Reporting Requirements Section 6055 Reporting Entities (Self-insured employers, regardless of size, that provide minimum essential health coverage) were required to file forms 1094-B and 1095-B with the IRS no later than February 28, 2017 (or March 31, 2017, if filed electronically).  Individual statements were due to be provided by March 2, 2017. Section 6066 Reporting Entities (Employers with 50 or more full-time (including full-time equivalent (or FTE)) employees were required to file forms 1094-C and 1095-C with the IRS no later than February 28, 2017 (or March 31, 2017, if filed electronically), with individual statements due to be provided by March 2, 2017. NOTE: Penalties for fail...

An employment issue gaining more attention recently is the persistent pay disparity between genders. Depending on which study you choose to rely, women still earn anywhere from 80 to 90% of what men make in the same or similar job. Some states, including Illinois, as well as local municipalities, are attempting to fix this through legislation other than the protections already provided in the Equal Pay Act .  For instance, just this week New York City passed an ordinance (to become effective in 180 days) prohibiting prospective employers from asking job candidates for their salary history ; seeking this information from a current employee, former employee or agent of the applicant’s current or prior employer; or by searching publicly available records or reports for information on the job applicant’s salary history. Additionally, it prohibits employers from disclosing employee salaries to prospective employers. Advocates for these measures argue that by basing future salarie...

In collective bargaining, the parties often have to address disputes over permissive and mandatory subjects of bargaining.  This is particularly important in police and fire negotiations.  Police officers and firefighters in Illinois are prohibited from going on strike .  Instead, they have the right to compulsory interest arbitration.  However, one party alone cannot submit a permissive subject of bargaining to an arbitrator for resolution. Mandatory subjects of bargaining are subjects that neither party can refuse to negotiate (wages, hours, terms and conditions of employment).  If the parties to a police or fire agreement reach impasse, mandatory subjects of bargaining must be submitted to arbitration.  Permissive subjects of bargaining are subjects that the parties are not required to negotiate, but may choose to negotiate voluntarily.  Permissive subjects cannot be bargained to impasse, and a party may to choose to stop negotiating over a per...

House Republicans recently introduced a bill that would allow employees to receive paid time off instead of overtime pay under the Fair Labor Standards Act . The legislation, called the Working Families Flexibility Act of 2017 (which you can find by clicking here ), was introduced earlier this month, and appears to have broad support among Republicans, meaning that it has a good chance of becoming law. Currently, the Fair Labor Standards Act requires employers to provide certain employees with overtime pay, equal to 1.5 times their regular hourly salary, for every hour worked over 40 in a week. The Working Families Flexibility Act would permit employees to take paid time off instead of receiving increased hourly wages as overtime compensation. Importantly, this law would only apply to private sector employees. The bill would permit employees to receive 1.5 hours of paid time off for every hour of overtime worked. So, if an employee worked 50 hours in a week, he or she would b...

Protracted settlement negotiations really paid off for the employer in this case questioning whether retirees were entitled to continue the same level of health insurance benefits throughout their retirement. A group of Michigan retired auto workers sued their former employer and predecessor companies for reducing and ultimately eliminating company sponsored retiree health insurance. The retirees, all union members, claimed that at the time of their retirement their collective bargaining agreement contained a provision which granted retiree health insurance for life. The cba provision stated “[C]overages an employee has under this Article at the time of retirement or termination of employment at age 65 or older ... shall be continued thereafter provided that suitable arrangements can be made with the Carrier(s).” When the defendant employer reduced the retiree health insurance benefit and ultimately discontinued it, the plaintiff retirees filed suit claiming that their benefits p...

The Equal Employment Opportunities Commission (EEOC) recently established new requirements that employers, including federal contractors, report pay data to the EEOC. Employers with at least 100 employees will be required to submit summary information pertaining to gender, race, and ethnicity as a way to improve investigations of possible pay discriminations. The five member committee voted narrowly 3-2 to approve the new pay data reporting. As you can imagine there is opposition to the matter. Advocates look forward to transparency as a way to discern patterns of discrimination by employers. But those against the new requirements say that it is onerous to employers. Now two Republican senators, Laram Alexander of Tennessee and Patrick Roberts of Kansas, are calling for the rule’s repeal . The Office of Management and Budget (OMB) approved the new requirement while retaining the authority to rescind or stay the rule through the federal Paperwork Reduction Act. The Act gives th...

In one of the first cases of its kind in Illinois, the state appellate court found that a Cook County Sheriff’s order regulating employee conduct on social media platforms was not subject to bargaining .  The “conduct order” in question regulated on and off duty conduct by employees and for the first time included language extending the rule to social media and networking sites.  The order required employees to conduct themselves in a professional manner and not bring disrepute on the department.  While a conduct rule had historically existed, the Sheriff’s Office amended it to include the following: “Be aware that conduct on and off duty extends to electronic social media and networking sites and that all rules of conduct apply when engaging in any Internet activity.” The union filed an unfair labor practice charge against the Sheriff alleging that the new rule was overbroad and violated employee rights under the Illinois Labor Relations Act .  According to the...

Cook County and Cook County Sheriff issued orders prohibiting employees from associating with anyone who is or was in a gang.  The orders also required employees to complete a disclosure form detailing any gang affiliations. Failure to comply with the orders subjected employees to discipline including termination. The union demanded bargaining over the orders and when the employers implemented the orders without bargaining, the union filed an unfair labor charge with the Illinois Labor Relations Board, Local Panel.  The Local Labor Relations Board upheld the orders finding that they involved matters of inherent managerial authority and there was no duty to bargain over the orders prior to implementation. On appeal, the First District Court of Appeals, reversed the Local Labor Relations Board and found that the orders involved both terms and conditions of employment and inherent managerial rights.  Applying the Central City balancing test, the court held that the...

As everyone knows, pregnant employees face certain health risks that other employees do not. What happens if you discover that you have a pregnant employee who may have to perform work that could be harmful to her health and/or the health of her unborn child? Should you bar her from engaging in this potentially harmful work? The answer, which may be surprising to some, is no-as doing so is probably illegal. One employer recently learned this the hard way . The employer hired an employee to repair furniture. The job required the employee to use chemicals that could be potentially harmful to pregnant women and their unborn children. When the employee informed her employer that she was pregnant, her employer showed her a label on chemicals she would use stating that they were dangerous to pregnant woman. The employer then told her that because she was pregnant, she could not handle the chemicals, and therefore could no longer be employed. The Equal Employment Opportunity Commissi...

Chicago Mayor Rahm joined the State of Washington in sending the message to the State of North Carolina that the partial repeal of House Bill 2 is not enough to lift current travel bans to the state.  Last week, Emanuel said that the City’s employees will not travel to North Carolina for non-essential City business.  This week, the Chicago City Council will vote on a resolution to reaffirm the City’s original travel ban.  The resolution is expected to pass easily. The original version of House Bill 2 required transgender persons to use the restroom and changing facilities that corresponds to the gender on their birth certificates.  The recently amended law removes the requirement to use the bathroom facility that corresponds to gender on one’s birth certificate in state facilities.  However, it placed a three (3) year prohibition on municipalities enacting their own anti-discrimination ordinances.  Therefore a municipality, if it so chose, could still...

The National Labor Relations Board (NLRB) has been getting as close as they can to asserting their jurisdiction over all of the employees of religiously affiliated colleges and universities. Recently after applying a test from the 80s, the board ruled that housekeepers at a Catholic university have the option to unionize. In 1979, the United States Supreme Court that the NLRB could not assert jurisdiction over lay teachers at religious schools. In NLRB v. The Catholic Bishop of Chicago , the U.S. Supreme Court said the exercise of “the Board's jurisdiction presents a significant risk that the First Amendment will be infringed.” This was the beginning of the concerns. In 1987, the NLRB asserted that the board had jurisdiction over non-teaching employees at institutions that are religiously affiliated in Hanna Boys Center . The Ninth Circuit Court of Appeals affirmed the notion saying, the “school's cooks, cook's helpers, recreation assistants, maintenance workers, a...

In a recent decision from the National Labor Relations Board, an administrative law judge addressed whether a laid-off employee’s Facebook photos and comments, which were critical of her employer’s pay and workplace condition policies, could be used in the employer’s decision not to rehire the employee.  The case was initiated by Myeasha Strain, a former sales employee at Natural Life, a company engaged in the sale of health supplements, who claimed that the company engaged in unlawful surveillance by checking her Facebook page.  One of the company’s managers, Linda Guggia, heard that Strain was posting “horrible things” about her on Facebook.  After hearing about these “horrible things,” Guggia, who was Facebook friends with Strain, looked and saw that Strain had made negative comments about the company and its owner.  Guggia specifically recalled Strain commenting that “she had something for their ass.”  Strain made other comments in which she claimed that he...

Employers are often faced with difficult questions regarding what to do with an employee who has been on extended leave for a medical condition.  Such extended leaves can take many forms.  Employees can be on leave for a personal illness or injury that results in FMLA leave and sick leave use.  They can also be out on workers compensation which may also involve FMLA and potentially an unpaid leave of absence to ultimately recover from their disabling condition. Navigating the many different types of leaves available to sick or injured employees is difficult enough.  But after the leave ends, many employers think that they are done.  If the employee can’t come back to work without restrictions, then they are terminated.  Unfortunately, it’s not that simple.  Once all traditional leaves are exhausted (FMLA, vacation, sick, personal, unpaid etc.)employers must then consider whether or not the employee can return to work and perform all of the essenti...

As we discussed , last week the 7th Circuit Court of Appeals issued a landmark ruling that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of their sexual orientation. This was a departure from a number of rulings from other courts , and an adoption of a position many felt was a radical theory advanced by the EEOC. The 7th Circuit only covers Illinois, Indiana, and Wisconsin, so the decision only applies to employers in those states. However, it is very possible that other circuits will adopt the 7th Circuit’s position. One of the reasons that the court held that Title VII prohibits sexual orientation discrimination, despite the fact that this language is not explicitly stated in the statute, is based on the theory that Title VII prohibits discrimination against employees on the basis of whom they associate with. Cases going back decades have held that an employer cannot, for example, refuse to hire a white employee...

A Bipartisan, Bicameral bill was introduced last week that would allow for previously incarcerated Americans to overcome the employment barrier of having to check the criminal history box when applying for federal jobs. Representatives Elijah E. Cummings (D-Md.) and Darrell Issa (R-Calif.) introduced the Fair Chance Act to the House , while Senator Cory Booker (D-N.J.) introduced a companion bill in the Senate . The Fair Chance to Compete for Jobs Act of 2017, otherwise known as the Fair Chance Act, would prohibit employers from requesting an individual’s criminal history prior to a conditional offer for federal employment. This includes both oral and written inquiries into a person’s criminal history made before the conditional offer stage. Eighteen states and over 100 cities and counties have similar policies already in play, frequently referred to as “ ban-the-box ” because it eliminates the box asking about criminal histories on job applications. While the Act would apply ...

On May 12, 2016 OSHA issued a final rule regarding workplace injury and illness recordkeeping and reporting requirements ( 29 CFR 1904.35 ).  Enforcement of the final Rule was delayed until December 2016. The new Rule added provisions prohibiting employers from discharging or in any manner, discriminating against employees for reporting work-related injuries or illnesses.  The Rule change requires employers to inform employees of their right to report and their protection from retaliation. The Rule does not ban employer disciplinary, incentive, or drug testing programs, but the use of these programs to discourage reporting or retaliate for reporting is prohibited. Applying the new Rule with regard to drug testing, OSHA states, employers may conduct post-incident drug testing if there is a reasonable possibility that drug use contributed to the incident.  OSHA further states than other than alcohol tests, current drug tests are generally unable to establish a ...

As summer approaches, the number of student workers, that is minors, increases dramatically as students who go on summer break search for a summer job. While minors are source of inexpensive seasonal labor, it is important for employers to keep in mind several employment issues when hiring minors. Depending on job requirements and policies, employers may have reasonable safety and security concerns with seasonal labor needs met by minor, particularly whether to conduct pre-employment and random drug tests. Decisions to carry out pre-employment and random drug tests require a careful understanding of the nature of minor consent, not only to make certain the consent is valid and enforceable, but also to insulate itself from future liability. That is because Illinois law provides that a person under 18 is a minor. In general terms, minors do not have the maturity necessary to fully grasp the implications or understand the terms of an agreement granting the employer consent. Although ...

The 7th Circuit, a court that is often considered to be somewhat conservative, yesterday issued its decision in the much anticipated case of Hively v. Ivy Tech addressing the question of whether the prohibition against discrimination based on sex in Title VII of the Civil Rights Act of 1964 extends to sexual orientation. The court answered that question in the affirmative, becoming the first federal circuit court of appeals to make such a finding. The issue, about which this court, as well as many others across the nation has grappled, is that Title VII prohibits discrimination based on sex. For a number of years, this was widely thought to literally protect individuals because of the fact of their gender and courts were reluctant to expand that definition. So, for instance, courts understood that Title VII prohibited an employer from refusing to hire a qualified firefighter candidate because she happened to be a woman but have been reluctant to find that the same rule applies if...