The Workplace Report with Ancel Glink

The recent ruling by the 7th Circuit Court of Appeals in Nishchan v. Stratosphere Quality, LLC , reminds employers that their policies may provide “constructive notice” to them of harassment incidents. Stratosphere Quality, LLC (Stratosphere), provides third party inspections and quality control services to car manufacturers. Plaintiff worked her way up the ranks of Stratosphere, eventually becoming a project supervisor. Defendant was a liaison for Chrysler, one of Stratosphere’s clients, working to oversee some of the Stratosphere’s inspection procedure. The plaintiff alleged the employee of her employer’s client sexually harassed her “relentlessly” by making lewd comments and rubbing himself against her. The alleged harasser was not considered a supervisor of the plaintiff, but rather a coworker. The defendant argued correctly that the company was not liable for coworker’s actions if the victim never reported it.  Here, it is undisputed plaintiff made no complaints until...

Last week, the 9th Circuit Court of Appeals upheld the suspension of a high school football coach for praying on the field after football games. The court ruled that the school district did not violate the coach’s First Amendment rights when it suspended him for praying. After each game, the coach would kneel at the 50 yard line and would pray. While he initially prayed by himself, football players began to join him, as did spectators. He would pray for player safety, sportsmanship, and spirited competition, and would often give motivational speeches. The school district claimed that these activities violated district policy that “staff shall neither encourage nor discourage a student from engaging in nondisruptive oral or silent prayer,” and therefore suspended him. The coach sued the school district, claiming that the suspension violated his First Amendment right to freely exercise his religious beliefs . He argued that his conduct did not encourage or discourage students ...

Last week, the U.S. District Court for the District of Columbia handed the Equal Employment Opportunity Commission (EEOC) some bad news on two of the commission’s rules on workforce wellness programs. While the federal judge allowed the rules to stay in place (for now), in order to avoid “potentially widespread disruption and confusion,” the court found that the rules were arbitrary. Last October, the AARP challenged the rules that allowed employers to increase premium contributions up to 30% of individual coverage for employees who refused to participate in wellness programs by disclosing their medical or genetic information. AARP claimed that these rules allowed employers to illegally access private health information by financial coercion and potentially use that data in a discriminatory manner. The AARP argued the 30 percent incentive was inconsistent with the ADA and GINA requirement that the incentives are voluntary. The District Court sided with the AARP by stating th...

The workers for the Minnesota Timberwolves and Lynx basketball games at the two teams’ Target Center are eligible to unionize through according to a recent National Labor Relations Board (NLRB) ruling. The NLRB’s split ruling reversed the Regional Director’s decision that the workers are considered independent contractors. In February 2016, the International Alliance of Theatrical Stage Employees filed a representation petition on behalf of 30 part time workers on the Target Center’s video crew. The T-Wolves opposed the unionization on the basis that these workers were independent contractors. The regional director agreed with the T-Wolves. The Regional Director concluded that the only two factors in favor of the workers’ employee status were that the T-Wolves provided their equipment and various petitioners had been there for several years.  However, the NLRB’s ruling found that the elements of the relationship between the team and workers evidenced that they are employe...

We have written a number of blog posts imploring employers to preserve their records, and a recent case out of Colorado illustrates why. In that case, the Equal Employment Opportunity Commission (EEOC) was investigating allegations that a company refused to allow prayer breaks for Muslim employees at a meatpacking facility. One of the defenses that the company asserted was that allowing these breaks would impose an undue hardship upon it because it would slow production to unacceptable levels. The EEOC asked the company to produce records showing where the slowdown would have taken place, how much production would have slowed, and whether there were other explanations for the slowdowns. The company was only able to produce a small number of the documents that the EEOC requested, apparently because it had failed to preserve most of them. As a result of this failure, the court barred the company from using this defense. This could potentially cause the company to lose the case. ...

Many who are even somewhat familiar with the south suburban City of Harvey know that it has fallen on extremely bad financial times. Amidst what seems likes almost continuous allegations, investigations and indictments of City officials, the Illinois Appellate Court has found the firefighters’ pension fund to be nearly bankrupt in violation of the both the state Constitution and the Pension Code. It seems that for several years prior to 2010 Harvey either levied a grossly insufficient amount to fund the firefighters’ pension fund and/or failed to contribute even 50% of the suggested amount necessary to maintain appropriate funding. During fiscal years 2011 through 2013 Harvey failed to either levy or contribute to the pension fund. As of 2014, the Harvey Firefighter Pension Fund was just over 27% funded and the City admitted not only had it failed to properly levy and contribute but that the City was in a precarious financial position without a clear plan to make up the funding de...

Union Organizing and Management Strategy When: Wednesday, August 30, 2017 8:30 a.m. to 11:30 a.m. Where: Bridges of Poplar Creek Country Club ( 1400 Poplar Creek Drive, Hoffman Estates, IL 60169 ) Who: All levels of management, including executive directors, administrators, attorneys, and human resource professionals. What: Fewer American workers belong to labor unions than at any time since the U.S. government began tracking this statistic. Membership has tumbled even further with the increase of right-to-work laws and litigation over fair share dues. In an effort to boost declining membership, labor unions have set their sights on new sectors, including increased focus on smaller local government units and higher education. Labor unions recently have organized park district employees as well as both resident assistants and adjunct faculty at colleges and universities and further union organizing in these nontraditional sectors is certain. It is important for an e...

The Southern District Court of New York has sent a case to trial that is a perfect example of why communication is integral to an employer’s FMLA compliance. In the case of Rengan v. FX Direct Dealer, LLC , the employer had provided a handbook to employees that set out employee entitlements to 12 weeks of unpaid FMLA leave and a separate section providing eight weeks of paid maternity leave. There was no mention as to whether these provisions ran concurrently or consecutively, so the plaintiff in this case was unaware that the employer considered the two provisions to run concurrently and was fired when she didn’t return to work after 12 weeks off. The Department of Labor sets out specific notice requirements for complying with FMLA. The employee timely submitted a formal request for time off via email, with the idea that it she was asking for maternity leave. The employer approved the leave and did not provide FMLA eligibility and return date notices, which would have put the pla...

It’s often a fine line between public employees who are exempt from 1st Amendment protections because of their duties for the employer and those who enjoy protection when criticizing their employer about matters of public concern. Last Monday, the 7th Circuit Court of Appeals affirmed a district court’s decision to dismiss allegations of 1st Amendment retaliation and due process violation claims against former Illinois governor Pat Quinn. Quinn declined to reappoint a number of Illinois Workers Compensation Commission arbitrators who challenged a law that reduced the arbitrators’ term limits. What is especially interesting about this case is that the “speech” of the arbitrators in question was in the form of a lawsuit challenging the validity of legislation that reduced their term of office.  The court ruled the governor’s decision to not reappoint these arbitrators was permissible because the employees were “policymakers” under the law and therefore did not enjoy 1st Ame...

An employee’s health will always be relevant to his or her employer. After all, an employer will want to know whether an employee has a medical condition that may impact their ability to perform their job. However, long gone are the days when an employer can just ask an employee to turn over medical records or disclose medical conditions. So, how can an employer obtain relevant employee medical information without violating the law? First, employers should have a basic understanding of the laws governing employee medical information. The Americans with Disabilities Act (ADA) is the main law governing how employers obtain employee medical information, although the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act also are relevant. The Americans with Disabilities Act generally prohibits an employer from asking a job applicant questions about medical conditions, even if that applicant does not have a disability or the question is related to ...

My colleague, Bob McCabe, has a saying that goes like this: "Don’t take action against your worst employee that you wouldn’t take against your best employee under the same set of circumstances." It’s good advice to employers, who are, after all, only human, and can let emotions or frustrations get in the way of thoroughly sound employment decisions. Take the recent case by a discharged employee of Staples in New York.  The employee, who had worked for the company for about a dozen years, had spent the previous two years working with lifting restrictions in a job where lifting played a significant part. In fact, the employee’s restrictions were so significant that it was reported that her co-workers often assisted her, sometimes requiring them to stay beyond their shift. Shortly before her discharge, her supervisor reported that she was only achieving 40% productivity. The employee’s supervisor was clearly frustrated with the employee’s situation and sent several emails ...

We previously wrote in June 2016, about the dangers employers face when requiring their employees to sign non-compete agreements with the company. While that case brought light to the issue of overly restrictive agreements with employees, recently the Chicago-based Nordstrom subsidiary company, Trunk Club, Inc., became the subject of a suit over their company’s overly broad non-compete agreement required for their entry-level employees. Trunk Club is a personal shopping service selling middle to high-end adult men and women’s fashion. The company began in 2009 and over the years has grown. Its practice is to hire numerous entry-level employees for various positions throughout the company. Molly Dowell, who represents similarly situated employees in this class action lawsuit, began working as a personal stylist for The Trunk Club almost immediately after she graduated college. She had years of experience in retail and earned a degree in retail management. Dowell was an entry-l...

Many have read recently about Google firing one of its engineers after he circulated an internal memo which, among other statements, claimed that men are genetically more predisposed to working in the tech industry than women. The statement is a part of a ten page memo that condemned Google’s diversity efforts.   In a statement by Google CEO Sundar Pichai, the employee was fired for “perpetuating gender stereotypes.”  Specifically, Pichai noted that the statements were inappropriate because they advanced “harmful gender stereotypes in our workplace.” Pichai said “[T]o suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK.” While many disagree with the employee’s opinion, doesn’t he have the right to think that way, and maybe even express his opinion? Isn’t freedom of speech (and therefore freedom to have one’s opinion) part of the foundation of this country? So, can an employer actually fire someone ...

One would think that gender dysphoria would not be a protected category under the Americans with Disabilities Act (ADA), because the ADA seems to specifically exclude it from being a covered disability. Section 12211 of the ADA excludes “transvestism, transsexualism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” from being covered under the Act. This would seem to pretty clearly exclude gender dysphoria or transgenderism from being a covered disability under the ADA. Therefore, it was rather curious when a federal judge in Pennsylvania found that an employee’s gender dysphoria could be a protected category under the ADA. In Blatt v. Cabelas , a plaintiff argued that excluding gender dysphoria from ADA protection violated the Equal Protection Clause. The judge, however, refused to rule on this, and instead found that the plaintiff’s gender dysphoria created “clinically significant stress and other impairments that may b...

Effective January 1, 2017, the Occupational Health and Safety Administration (“OSHA”) expanded its prohibition against retaliation such that employers may not have blanket policies that require mandatory post-accident drug testing.  This does not mean that post accident testing is no longer allowed.  It just means that employers should make sure that their policies have been reviewed to insure compliance with OSHA’s regulations. The new OSHA standard does not, per se, prohibit post accident drug and alcohol testing.  Now, if an employer wants to test for the presence of drugs or alcohol after an employee accident, they may do so only if they can demonstrate an “objectively reasonable basis” for doing so.  OSHA takes the position that drug testing policies should be limited to situations where (1) employee drug or alcohol use is likely to have contributed to or caused the accident; and (2) the drug or alcohol test can accurately identify impairment caused by ...

We reported back in 2015 about the unsuccessful attempt by some Chicago Police Officers to collect for overtime they were forced to perform when they were issued BlackBerrys and required to respond to messages off duty. At issue was the Plaintiffs’ claim that they routinely received email messages while they were off duty on their BlackBerrys to which they were expected to respond. They also claimed that an unwritten policy existed in the Department that officers did not ask for overtime for this kind of work off duty. In support of their argument, Plaintiffs offered a 2010 general order (issued after the suit was filed, but assumedly documented a previous unwritten policy) which stated that the BlackBerrys were issued for the convenience of the officers and that the general guideline was that members would not be paid for performing off-duty BlackBerry work unless on a call-back assignment or specifically directed and authorized by a supervisor to perform the overtime work....

Let’s say that you have an employee who you know has a medical condition which you believe is creating a safety risk in him doing his job.  For instance, an employee with a seizure disorder that cannot be entirely controlled by medication and results in loss of consciousness, is likely a safety threat in a job that requires supervision of young children. In these kinds of situations, the employer does not have to continue employment. But the question is, how can an employer accurately assess whether an employee poses a direct threat to the health or safety of himself or others? The 7th Circuit Court of Appeals this week upheld a jury finding that the City of Evanston violated the ADA when it fired a water department employee who had suffered an off duty traumatic brain injury and upon release from his doctor to return to work was observed running a red light in one instance, going to wrong work locations, and suffering from memory issues which, in some instances, resulted in ...

A Pennsylvania federal district court ruled that a claim of negligent supervision should go to trial, finding that it was foreseeable that a male employee who was accused of sexually assaulting a female co-worker off duty might subsequently interact with her during work hours.   Ms. Brantley, plaintiff, and Darryl Strickland, the alleged assaulter, met while working at American Airlines. Brantley mostly worked at a terminal counter and Strickland often picked up different shifts. On August 21, 2015, Strickland was over at Brantley’s home and sexually assaulted her. She drove herself to the emergency room and called the police that same day. Brantley informed American Airlines of the events. Strickland was subsequently criminally charged for assault and Brantley obtained a protection order against him. The VP of the airline ordered an investigation of the events that didn’t go further than speaking with Strickland. Brantley and Strickland had two “close call” encounters at...

What should employers do when they have an employee with religious beliefs that are unconventional, and such beliefs interfere with the employee’s job performance? Title VII of the Civil Rights Act of 1964 prohibits employers from firing employees based on their religion, which has led the courts to conclude that the law requires employers to accommodate their employees’ religious beliefs. But what if those beliefs seem unusual? How far must an employer go to accommodate such unusual beliefs? A court in West Virginia recently considered such an issue.  In that case, (which you can access by clicking here ) , a coal miner refused to use a machine which scanned his thumbprint when the employee arrived and departed from work. The employee, a devout evangelical Christian, believed that doing so would create the “Mark of the Beast,” which is referred to in the biblical Book of Revelation as the mark of followers of the Anti-Christ. Such a mark would, the employee believed, prevent ...