The Workplace Report with Ancel Glink

The right to work debate, while not new in this country, has burned a little brighter recently among states, local governments and in the federal courts. Proponents of both sides of the controversy, which centers around whether employees who choose not to join a union must nevertheless pay fair share dues to the union if they are in unionized job titles, looked for a Supreme Court ruling last years in the case of Friedrichs v. California Teachers Association . The death of Justice Scalia resulted in a 4 – 4 split on the court, resulting in the lower court decision standing. This week the Supreme Court is considering whether it will hear the case of Janus v. AFSCME , a case out of Illinois, which raises the same issues as Friedrichs did as to whether forcing public employees to pay fair share dues denies them their constitutional rights by requiring them to pay money to unions who use part of those funds to advance the union’s political agenda, which may differ from their own polit...

As I recently discussed , the penalties for hiring illegal immigrants can be severe, including hefty fines and even jail time. To make it easier for employers to avoid these penalties and be in compliance with federal employment laws, the Department of Homeland Security (DHS) created E-Verify , a free online service that allows employers to verify the employment eligibility of newly hired employees. E-Verify is voluntary for most employers, although some employers with federal contracts are required to use it. Some states also require employers to use E-Verify. Illinois, however, is in the unique position of passing legislation that discourages employers from using E-Verify. Ostensibly concerned about inaccuracies in E-Verify data, the Illinois legislature passed a law in 2007 that would have prohibited private employers from using E-Verify. The DHS sued the State, arguing that the law was unconstitutional, and a court agreed, striking it down. Illinois then amended the law, ...

Of late, EEOC guidance has been that a long term medical leave of absence should qualify as a reasonable accommodation under the Americans with Disabilities Act (“ADA”) provided that: the leave is of a definite and time limited duration; it is requested in advance; and it is likely to enable the employee to perform the essential functions of his job when he returns. The EEOC’s position makes the duration of the leave irrelevant as long as it is likely to enable the employee to do his job when he returns.  This has been a problem for employers.  In a case decided on September 20, 2017, the 7th Circuit Court of Appeals in Severson v. Heartland Woodcraft, Inc. , disagreed with the EEOC’s logic, significantly altering an employer’s obligations with regard to unpaid medical leaves of absence as reasonable accommodations under the Act. In Severson , the employee suffered from chronic back pain.  He took a twelve (12) week leave of absence under the Family Medic...

In the last regular session of the Illinois legislature, among other measures designed to enhance citizen safety, an amendment was adopted to the existing Police and Community Relations Improvement Act requiring police officers to undergo drug testing after officer involved shootings. The new legislation , which flew under the radar of most, is currently effective and reads as follows:     (a) As used in this Section, "officer-involved shooting"  means any instance when a law enforcement officer discharges his or her firearm, causing injury or death to a person or persons, during the performance of his or her official duties or in the line of duty.      (b) Each law enforcement agency shall adopt a written policy regarding drug and alcohol testing following an officer-involved shooting. The written policy adopted by the law enforcement agency must include the following requirements:         (1) each law enforcement officer...

On September 7, 2017 , the Atlanta-based court became the second federal appeals court, joining the Fifth Circuit, to recognize breast feeding as covered under Title VII of the 1964 Civil Rights Act. An Alabama police officer returned to work after giving birth to her child when she was denied a desk job to avoid wearing a ballistic vest that may potentially render her unable to breastfeed. Stephanie Hicks presented sufficient evidence that after her doctor determined the standard bullet proof vest could cause infections and compromise her ability to breastfeed, she was faced with a choice between walking a beat with no bullet proof vest or a specially fitted one. Although the specially fitted vest posed no threat to Hicks’ breast-feeding ability, the article would have gaping holes and, therefore, be both ineffective and dangerous. The Eleventh Circuit found breast-feeding is a gender-specific condition to pregnancy, which is covered by the plain language of the Pregnancy Dis...

In November of 2016, a Texas federal district court issued a preliminary injunction which blocked the implementation of proposed amendments to the Fair Labor Standards Act’s (“FLSA”) overtime rules.  To recap, the Obama Administration had proposed changes to the overtime rules that would include raising the salary threshold for exempt employees from $23,660 to $47,476.  This change would have had a significant impact on many employers.  However, in November of 2016 U.S. District Judge Amos Mazzant issued an injunction preventing the new overtime rules from taking effect on December 1, 2016, as originally scheduled.  This meant that employers nationwide could put the overtime changes on hold . On August 31, 2017, the hold became permanent .  Judge Mazzant’s decision invalidating the proposed changes to the overtime rules stressed that when Congress enacted the so called “white collar” exemptions of the FLSA it made it very clear that an employee’s job dutie...

The 2017 hurricane season has been particularly brutal, with two massive hurricanes devastating much of Texas and Florida. While we are fortunate that hurricanes are not a worry in Illinois, tornadoes, floods, and blizzards are all very much a part of life here. While the focus during these events is generally on rescue and recovery, one thing that may be on employers’ minds is what their responsibilities to their employees are during these natural disasters.  Here are the answers to a few common questions that employers may have: How Do I Pay Employees During a Natural Disaster? Employers are only required to pay hourly employees for any hours worked during a natural disaster. So if an employer tells everyone to go home right before a major storm, hourly employees do not need to be paid for the time the workplace is closed, even if they were scheduled to work during this time and are willing to do so. The same is true if an hourly employee shows up to the office only to ...

Even members of a security detail can be exempt from First Amendment protections against political retaliation. While we’re not sure if all police officers would find that being assigned to their mayor’s security detail would be a plum assignment, some members of the Chicago Police Department certainly do. So, when some of the officers who were assigned to Richard M. Daley’s security detail were overlooked for assignment to Mayor Emmanuel’s detail in favor of officers who had volunteered for Emmanuel during his campaign, Daley’s officers filed suit. Among their allegations was the claim that they were not retained on that security detail due to political retaliation. Presumably, those officers, who claimed to be better qualified to serve as security for a mayor, were overlooked in favor of Mayor Emmanuel’s political allies (the ones that volunteered during his campaign). In affirming the dismissal of this claim last week, the 7th Circuit Court of Appeals noted that the First A...

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... P.A. 100-0425 was recently enacted to add new qualification requirements for candidates for appointment to the position of fire chief. The new law applies to municipalities that employ firefighters under either the Civil Service Act or the Board of Fire and Police Commissioners Act and also applies to fire districts. The new law prohibits the appointment of a person to the position of fire chief for a period greater than 6 months unless that person possesses the following qualifications and certifications: 1. Office of the State Fire Marshal Firefighter Basic Certification or Firefighter II Certification; Fire Officer I and II Certifications; and an associate degree in fire science or a bachelor's degree from an accredited university or college; or 2. A minimum of 10 years' experience as a firefighter at t...

Parties to a collective bargaining agreement bargain for and agree to follow certain procedures for the filing of a grievance.  When employers and the union strictly follow the memorialized grievance procedures, they rarely, if ever, envision the grievant filing a retaliation charge with the U.S. Equal Employment Opportunity Commission (“EEOC”).  Both employers and unions should no longer overlook potential retaliation claims in light of a decision issued just last week by the U.S. Court of Appeals for the Sixth Circuit that held placing a grievance on hold because the employee files an EEOC charge constitutes retaliation. At issue in Watford v. Jefferson County Board of Education et al. are the grievance procedures in the collective bargaining agreement between the Jefferson County Board of Education (“the Board”) and Jefferson County Teachers Association (“the Union”). According to the grievance procedures in the collective bargaining agreement, if an employee believed...

Last week, the Trump Administration announced that it would be ending the Deferred Action for Childhood Arrivals (DACA) program that was put in place by the Obama Administration in 2012. The end of this program will affect many undocumented immigrants, so employers with undocumented employees should be aware of these changes. What Is DACA? DACA was implemented by the Obama Administration in 2012 and it essentially gave work permits to undocumented immigrants brought to the United States as children. The Obama Administration stated that it would not deport undocumented immigrants brought to the United States when they were under the age of 16 and had resided in the U.S. for at least five years before June 15, 2012. It also said that it would give these undocumented immigrants an “Employment Authorization Document” (EAD) stating that the workers would not be deported, which essentially acted as work authorization papers. In order to receive an EAD, the undocumented immigrant...

It is well established that money paid out in settlement agreements, whether for severance or in settlement of claims against an employer involving injuries other than physical injuries, is income subject to taxation.  But, until relatively recently, it was unclear as to whether settlement money was subject to withholding or could be reported on an IRS 1099 form. United States v. Quality Stores, Inc. (U.S. Supreme Court, March 25, 2014) settled that. Quality Stores was a Michigan-based agricultural-specialty retailer that declared bankruptcy in 2001.  Employees who were terminated received severance payments.  The Company at first treated the severance payments as wages, paid the employer’s share of FICA taxes , and withheld the employees’ shares of FICA taxes.  The Company then decided it should not have had to pay FICA taxes or withhold FICA taxes on behalf of employees, so it initiated a proceeding in the bankruptcy court on behalf of itself and the employee...

On July 17, 2017, the U.S. Citizenship and Immigration Services (USCIS) issued a new version of the Department of Homeland Security’s Employment Eligibility Verification Form (Form I-9) . The updated form is mandatory beginning September 18, 2017. Until then, employers can use an older version of the form (revision date November 14, 2016). Copies of the new form, a supplement sheet, and the instructions for completion, as well as a Handbook for Employers containing guidance for completing Form I-9 can be obtained on-line from the USCIS. The new form is updated to provide changes to instructions and the list of acceptable documents. Among the changes are the following: The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices has been changed to Immigrant and Employee Rights Section. Documents on List C (documents that establish employment authorization), other than the social security card, have been renumbered. For example, the employment...

Highlighting how important it is in defense of a Title VII gender claim to treat employees of both genders the same, last week the 7th Circuit affirmed the dismissal of a discharged employee’s claim that she was fired because of her undisclosed relationship with a male subordinate. In the case of Owens v. Old Wisconsin Sausage Co. , the plaintiff, Jamie Owens, was hired as H.R. Manager. Shortly after her hire, she participated in the interview and selection process of a store manager. After a few months, several employees began to complain that they believed that the store manager and Owens were involved in a romantic relationship and that it was creating conflicts in the workplace. The company did not have a formal policy against co-workers dating, but it did have an informal procedure. If it appears that co-workers have a dating relationship, especially when a supervisor/subordinate working relationship exists between the two, the company will question the employees about th...

A court recently held that the Cook County Public Defender’s Office’s promotions process did not have an adverse impact on male attorneys. A male attorney in the Office filed a lawsuit against it, claiming that the promotion process favored female attorneys over males. The attorney was one of 38 public defenders who sought a promotion, 20 of whom were male and 18 of whom were female (53% to 47%). However, of the public defenders who received the promotion, just 4 were male and 11 were female (27% to 73%). The attorney, who was not promoted, claimed that this disparity was evidence that the promotions process had an adverse impact on males, and therefore violated Title VII of the Civil Rights Act of 1964. He claimed this was due to the interview questions and the subjective nature of the way the applicants were rated. It can be a violation of Title VII when a policy appears neutral but tends to harm one group more than another for no justifiable employment-related reason. For ...