The Workplace Report with Ancel Glink

The District Court for the Northern District of Illinois recently denied a motion to dismiss against an employee’s FMLA claim, stating the employer had notice of the employee’s serious medical condition through, what can be described as, her repeated unusual behavior. In Valdivia v. Township High School District 214 , Noemi Valdivia stated that District 214 discriminated against her on the basis of race, and interfered with her right to take job-protected leave, and violated the Family and Medical Leave Act. Valdivia worked for District 214 from May 2010 through August 2016. She began working at Elk Grove High School as a secretary, and throughout her time there regularly heard negative comments about Hispanics by her co-workers. This behavior increased in September 2014 and by June 2016, she became so distraught that she left Elk Grove and began working at Wheeling High School, another school part for District 214. After working at Wheeling for a about a month, Valdivia c...

Do you have a workplace violence policy? If not, you could be in violation of the law. The Occupational Health and Safety Administration (OSHA) recently updated its guidance on workplace violence policies, which you can access by clicking here . OSHA enforces federal laws and implements regulations relating to workplace safety. Employers who have dangerous workplaces could be in violation of these laws, which could subject them to fines and penalties from OSHA. Dangerous workplaces are not just limited to dangers associated with the work performed. Workplaces which experience violent crime can also be considered dangerous and could violate various OSHA regulations .    In recent years, OSHA has placed an increased emphasis on preventing workplace violence. The Bureau of Labor Statistics estimates that there are between 15,000 and 25,000 incidents of workplace violence each year, although OSHA claims that many more incidents are likely unreported.  OSHA’s guid...

We are often asked by clients to assess issues arising from employee performance that may be related to disability.  These issues are difficult to analyze, not only from a legal perspective, but also from the standpoint of the employer’s desire to be compassionate to an employee who is dealing with a difficult health related issue.  In this post, we will clarify some of the employer’s obligations under the Americans with Disabilities Act (“ADA”) and provide some guidance regarding the balance between providing a “reasonable accommodation” and avoiding “undue hardships.” First, it is important to understand that just because an employee has not used the terms “disability” or “disabled,” this does not mean that the employer has no obligations under the ADA.  While the employer cannot ask the employee directly if they are disabled, the employer should make common sense observations that may lead to the conclusion that a reasonable accommodation should be discussed with ...

As the title says, today is officially Take Your Dog to Work Day . I’m not exactly sure how or who made this official, but I’m pretty sure there was no Act of Congress, such as in the declaration of Mother’s Day. As a dog lover, I appreciate the idea of employers caring about their employees’ poor pooches that are home alone for hours on end while their owners toil away in the old salt mine. And it’s true that maybe an employee might stay at work a little longer if they had their trusty hounds by their side. I’m a big advocate of employers finding the right “perks” to make their workers want to stay with the organization. These can and should address what’s causing distraction or even absence from work or what might make someone decide to take a job with an organization. Student loans, which I sometimes refer to as the next economic bubble in this country, are a great example. More employers recognize that many of their new recruits have heaps of student loan debt and a good recru...

On Friday, June 16th, the Department of Justice (DOJ) announced that it will be switching sides in the Supreme Court case of NLRB v. Murphy Oil . The case spotlights the issue of whether arbitration agreements with individual employees that ban employees from pursuing employment claims on a class or collective basis violate the National Labor Relations Act (NLRA). The Obama administration’s DOJ took the position, siding with the National Labor Relations Board (NLRB), that employment agreements requiring workers to waive their rights to bring class action claims were invalid. The waivers compel workers to individually arbitrate claims with employers rather than bring collective lawsuits with co-workers. The Trump administration decided to ditch the NLRB and positioned on the opposite side of the table. The DOJ wrote an amicus brief in support of the NLRB, stating that arbitration agreements violated the NLRA. But after the Trump administration came into office, the DOJ re-fi...

Beverly R. Butcher, Jr. worked as a coal miner at Robinson Run Mine, owned by Consol Energy, Inc., for 37 years until the company installed biometric hand scanners in an effort to track employee attendance.  Butcher, a lifelong, devout evangelical Christian, informed his employer that using the hand scanners would be adverse to his religious beliefs.  Specifically, Butcher feared that using the hand scanners would associate him with the Mark of the Beast.  According to his interpretation of the biblical Book of Revelation, the Mark of the Beast brands followers of the Antichrist, allowing the Antichrist to manipulate and control them.  Upon instruction from the company, Butcher provided a letter explaining his need for religious accommodation.  The company responded by providing Butcher with a letter from the scanner’s manufacturer which offered its own interpretation of the biblical scriptures.  The letter stated that the Mark of the Beast was only associ...

As we have noted, laws requiring employers to provide paid time off, for sickness or injury, or to care for a sick or injured family member , or for maternity/paternity leave , have proliferated in recent years. However, to the chagrin of many pet owners no doubt, I have yet to come across a law providing employees with paid time off to care for a sick or injured pet. Until now. I recently came across a sick leave ordinance passed in June 2015 by the Emeryville, CA city council that requires employers to give employees time off to care for “a guide dog, signal dog, or service dog.” So guide dogs, service dogs, and signal dogs are not exactly pets in the same way as your dog fluffy may be, but it is still the first instance I have come across paid leave laws permitting time off to be taken for the care of an animal. I suppose this provision makes some sense. If an employee cannot function without a service dog, then that employee probably cannot do his or her job. After all, ...

We often discuss unpaid leaves of absence as a reasonable accommodation when employees have exhausted all other forms of leave but are still unable to return to work.  Typically reasonable accommodations under the Americans with Disabilities are viewed as something that allows an employee to return to their full duties either with or without a reasonable accommodation.  But the EEOC has provided guidance that a reasonable accommodation may also include an unpaid leave of absence if that leave of absence may give the employee the time necessary to recover from the disabling condition and return to work.  Indefinite unpaid leaves of absence are not required, so normally requests for unpaid leaves of absence as a reasonable accommodation are accompanied by a definitive return to work date from the employee (employee’s treating physician). However, what about situations where definitive treatment periods are less clear?  For instance, what about employees who are un...

We previously blogged about the ban-the-box movement that began several years ago, which allowed job applicants to avoid answering questions about their criminal history when applying for federal jobs. Similar to this, the movement to ban questions about applicant’s salary history has been raised in many cities and states. Most recently, on May 4, 2017, New York City signed a bill into law that prohibits asking about or relying upon the “what was your previous salary?” question. The new law will make it an unlawful, discriminatory practice for both private and public employers to ask this question, or any question about their salary history, in determining their salary amount for potential employment with the company. This includes the applicant’s current or prior wages, salaries, benefits, or any other form of compensation from their previous employment. There is one wrinkle, though. This law, which goes into effect October 31, 2017, does, however, allows employers to consider ...

It’s a pretty big deal when a court rules on an issue that has never been decided by a court before (or as we lawyers say “a case of first impression”). It’s also a pretty big deal to be the lawyer that wins a “case of first impression” as it means that you have convinced the court to “make new law”. One of our very own Ancel Glink lawyers, Britt Isaly , did that this week when he prevailed on a case involving one of the most vexatious statutes for municipalities, the Public Safety Employee Benefits Act , fondly referred to as PSEBA in our circles. PSEBA provides that public safety employees, generally police, fire and paramedics, who suffer a catastrophic, career or life ending injury or illness as a result of performing certain duties of their job (generally responding to an emergency, not falling on the way to the fridge in the fire house), are entitled to lifetime free health insurance to them and their dependants, limited only by Medicare eligibility. Aside from the cost of t...

What do student loans and employee benefits have in common? They both form the basis of one of the hottest trends in employee perks for millennials. As we have written about before, student loan debt is poised to be the next “bubble” in the economy as more millennials join the workforce. While this group of employees may not know it yet, paying off their student loans is likely going to become a burden to many of them when they put down their avocado toast and think about buying a house or supporting a family. Student debt levels increased by 3% nationally in 2015 and are expected to keep rising as millennials finish their formal education and enter the workforce. Some private employers have realized that money paid directly for student debt relief can be a powerful recruiting and retention tool. Last week, the City of Memphis became the first widely publicized public sector employer to offer this benefit as well. The City announced it will contribute $50 a month to the student lo...

Many employers research a job applicant’s credit history as part of the background check undertaken prior to hiring. There are some good reasons why employers may want to do this. An employee with a bad credit history may not be as responsible as one with a good history. If you decide to investigate a job applicant’s credit history, you should be aware that certain laws govern the use of credit reports in employment decisions. One of these laws is the federal Fair Credit Reporting Act . This law imposes limitations on the use of credit reports from credit reporting agencies when making employment decisions. Prior to obtaining a credit report to use when making an employment decision, an employer must: 1. Make a written disclosure to the job applicant that the employer may access their credit report. This disclosure must be made in a separate document—it cannot be made on the employment application. 2. Obtain the written authorization of the job applicant prior to request...

Employers often struggle with what they have to pay employees who are placed on call.  The Department of Labor’s (“DOL”) regulations governing the  Fair Labor Standards Act (“FLSA”) provides some guidance on this issue.  Generally speaking, only the most restrictive of on call scenarios  requires pay for all hours spent on call.  The law recognizes two categories of on-call employees:  (1) those who are engaged to wait, and (2) those that are waiting to be engaged. Only employees who are truly “engaged to wait” need to be paid for all of the hours spent waiting.  These employees are so restricted by the needs of the employer to have them immediately available that their time is not their own.  An example of such a situation would be one where the employee stays at the employer’s place of business and waits to be called to work.   So for instance, if a bad storm was in the forecast and a municipal employer ordered all of its police office...

The White House proposed a fiscal year 2018 budget in May that has some interesting takeaways. One of them being a merger between the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP). These measures are considered to be cost-cutting actions, reflecting new priorities in the Trump administration. Both agencies enforce laws on equality among employees in the workplace. The EEOC investigates discrimination complaints against private businesses while the OFCCP investigates discrimination against federal contractors. The idea behind the merger is to reduce the budget for the OFCCP, bringing it down from $105 million to about $88 million, and keeping the budget for the EEOC the same. The notion of a merger wasn’t all that well received. Camille Olson, testifying on behalf of the U.S. Chamber of Commerce, stated that the chamber went on record opposing it. Olson said that “[b]oth the EEOC and OFCCP need reforms,” just not a...

The Department of Labor (DOL) announced Wednesday the withdrawal of the Obama administration’s (informal) guidelines on employer determination of joint employer and independent contractor classifications. The classification guidelines are widely known as the “joint employer” doctrine, which set conditions on business liability for employment and civil rights law violations. The joint employer doctrine was created to help courts and businesses determine whether a business effectively controlled the workplace policies of another company. The doctrine was especially important to determine the employment relationship when a company sub-contracts employees to another business. The controlling aspects of employment could be hiring procedure, wages, or scheduling. The concise statement issued by the DOL on Wednesday morning stated that “U.S. Secretary of Labor Alexander Acosta today announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint e...

Love in the workplace is typically a bad idea.  And I’m not even talking about people who shouldn’t be “loving” each other because their respective spouses wouldn’t approve (although that can be disruptive to the workplace as well).  When things don’t end well with personal relationships it can be disruptive to the good order of the workplace.  Policies that discourage such relationships and mandate transfers or resignation if the relationship involves a supervisor and a subordinate are strongly encouraged.  But what if you have a workplace love affair that goes bad and the employees remain employed?  A new case out of the Northern District of New York sheds some interesting light on this issue. In Dole v. Town of Bethlehem , a case decided on April 25, 2017, the court addressed just such an issue.  The Plaintiff in Dole was hired by the employer as a police officer in January of 2014.  She then began dating a fellow police officer in December of ...

The Prevailing Wage Act applies to a significant percentage of local government expenditures, and therefore local governments would be wise to familiarize themselves with this law. The Prevailing Wage Act (820 ILCS 130/0.01, et seq.) requires public entities, like state and local governments, to pay workers employed in the construction of “public works,” like roads, bridges, and public buildings, the general prevailing wage that is paid for similar work in the area. The Act defines a “public work” broadly, as “all fixed works constructed or demolished by any public body, or paid for wholly or in part out of public funds.” 820 ILCS 130/2. This also includes projects financed with bonds or grants. Projects to repair damage caused by a natural disaster qualify as “public works” for which the prevailing wage must be paid, even if the repairs are made in an emergency. The prevailing wage must equal the wage paid for similar construction projects in the area. The Act states that pr...

We have reported previously on the ongoing “Battle Over Bathrooms”, usually involving a school district and a student whose gender-identity differs from the gender listed on his or her birth certificate.  On Tuesday of last week, the United States Court of Appeals for the Seventh Circuit, the federal appellate court covering Illinois, struck a blow in favor of the students and their parents.   Whitaker v. Kenosha Unified School District No. 1 Board of Education, et al ., Case No. 16-3522 (7th Cir., May 30, 2017). Ashton (“Ash”) Whitaker is a 17-year old student at a high school in Kenosha, Wisconsin.  Although his birth certificate identifies him as a female, his sexual identification is as a boy.  He had been using the boys’ restroom at the school when a teacher observed him washing his hands in the restroom and reported it to the school administration.  Ash was told he could not use the boys’ restroom but could use either the girls’ restroom or a gender-...