The Workplace Report with Ancel Glink

If it’s not obvious to employers already, sexual harassment appears to be unabated in the workplace despite laws prohibiting it in place for decades. Many opine that #metoo and the daily revelations of sexual harassment accusations by well known celebrities represent a break in the flood gates sure to continue beyond high profile accused and accusers. If any employer believes that their workplace is immune from sexual harassment, that employer might be hiding its proverbial head in the sand. The first thing we should understand from the daily reports of new harassment allegations is that no one and no workplace and no person is immune. The EEOC issued the results of an 18 month survey on workplace sexual harassment last year. Not surprisingly, it identified that almost one third of the approximate 90,000 claims it received in 2015 included a sex based harassment charge. Additionally, one survey result led them to the conclusion that three out of four victims of sex based harassme...

Residency requirements are hugely unpopular among police officers.  On one hand, police officers believe their work should guarantee them the freedom to live where they can best provide for their needs and the needs of their families. On the other hand, public employers believe police officers should live within, and be an integral part of, the communities they serve and protect. In 2016, the City of Springfield passed an ordinance requiring all non-union employees hired after January 1, 2017, to live within the city limits or move here within 12 months of being hired. Under the ordinance, existing employees who already live outside the city would not be required to move.  The City previously had a full residency requirement from 1976 up until 2000, when the prior ordinance was repealed. A version of the ordinance remained in effect that required certain members of the mayor’s administration to live in the city.  The ordinance was unpopular with many of the City’s c...

CLIENT ALERT Public Act 100-0554 was signed by Governor Rauner and became law on November 16, 201 7. In the wake of renewed awareness that sexual harassment remains prevalent in the workplace, the new law expands traditional protections against sexual harassment in employment by extending the scope of the law's prohibitions, by increasing penalties imposed on sexual harassers, and by providing new avenues of recourse for victims of sexual harassment. It also imposes new obligations on units of local government. Perhaps most significantly, the definition of "sexual harassment" in the new law does not require the existence of an employment relationship in order to be actionable. For municipalities, park districts, school districts, townships, libraries, and other units of local government, the law requires each entity to adopt an ordinance or resolution establishing a policy to prohibit sexual harassment within 60 days of the new law, or by January 16, 2018 . W...

While allegations of sexual harassment by our nation’s leaders dominated the headlines (again) last week, many may have missed a rather significant development: the passing by the House of a bill that would make pretty significant changes to our tax system. The Senate is currently working on its own tax reform bill, and there seems to be a real possibility that this Congress will pass tax reform. The House and proposed Senate tax bills make pretty major changes in the way that businesses are taxed. Here are some of the most important proposed changes: 1. Major Cut to the Corporate Income Tax Rate. The House bill cut income tax rates for corporations from 35% to 20%. This is a flat rate that applies to corporations of all sizes, unlike the current system where small businesses pay a lower tax rate. The bill also increases the amount of deductions that can be taken under section 179 of the Income Tax Code, which permits small businesses to deduct capital expenditures. The bill in...

To say that our current political climate is surreal is an understatement similar to “ Houston, we have a problem ”  and the weirdness continues on unabated.  In a new and comical twist, a woman in Virginia has been fired from her job with a government contractor for giving President Trump’s motorcade the finger . This case is interesting from an employment law standpoint for a variety of reasons.  Apparently the employee in question worked for a private company, but the company is a government contractor.  She was riding her bicycle in Virginia when Trump’s motorcade passed by her as he was leaving his golf club.  She said that, at the time, all she could think was that the DACA program was ending and immigrant children (“Dreamers”) were being kicked out of the country, ads for Obamacare were being pulled by the Trump administration impeding people’s right to sign up for healthcare, Puerto Rico is in the dark and our president is playing golf…again. ...

A recent Illinois court opinion confirms that privacy provisions within a collective bargaining agreement cannot usurp state law, particularly the Illinois Freedom of Information Act . In City of Chicago v. FOP, Chicago Lodge No. 7 , No. 16 CH 9793 (October 18, 2017), the Circuit Court granted the City’s petition to vacate an arbitration award that required the City to destroy disciplinary files that were over five years old that were the subject of a FOIA request. The opinion reinforces the well-defined and dominant public policy to preserve government records that is reflected in FOIA. By way of background, in 2015, the FOP filed two grievances claiming that the City had violated the collective bargaining agreement by releasing disciplinary records that should have been destroyed after five years pursuant to Section 8.4 of the collective bargaining agreement . Section 8.4 is the direct opposite of transparency because it provides for the destruction of documents related to the i...

Being a government employer can be tough. While private sector employers have great leeway in what they can discipline employees for, like holding political beliefs contrary to their own or even being a Green Bay Packers fan , government employers do not have such liberties. Government employers cannot discipline an employee for speaking on “a matter of public concern.” This means that a government employee cannot be disciplined for commenting on any type of broad social or policy issue that is not directly related to his or her employee. So, a government employee cannot be disciplined for stating that he or she would like to see the President assassinated . Nor can a DMV employee be disciplined for stating the DMV wastes taxpayer money . Instead, a government employee can only be disciplined for expressing personal grievances that comment on the day-to-day minutiae of the job, and do not address broader matters of public concern. In a recent case , a court found that a profes...

The October 12, 2017 Presidential Executive Order Promoting Healthcare Choice and Competition Across the United States has been greeted with a lot of political rhetoric about its effects, primarily with respect to the Patient Protection and Affordable Care Act (ACA).  But let’s talk about what it does, and doesn’t , do. The Executive Order states that:  “[i]t shall be the policy of the executive branch, to the extent consistent with law, to facilitate the purchase of insurance across State lines and the development and operation of a healthcare system that provides high-quality care at affordable prices for the American people”. The Order directs the relevant departments of the Executive Branch (primarily the departments of Labor, Treasury, and Health & Human Services) to “consider” proposing regulations to enable and expand the availability of association health plans (AHP’s), short-term, limited-duration insurance (STLDI), and health reimbursement arrangemen...

The EEOC filed suit against CRST Expedited, Inc., a national trucking company, on behalf of a United States military service veteran when the company based its hiring decision on the request of use of a service dog. Leon Laferriere was prescribed an emotional support dog to help him cope with his post-traumatic stress and mood disorders after serving in the United States military. In May 2015, he applied for a position of a truck driver with CRST in Fort Myers. As part of the truck driver program with CRST, applicants who have no experience must first attend driving school to earn their commercial driver’s license. Once they have obtained their license, and completed orientation, the applicant must drive with a more experienced lead driver to complete on-the-road training. Because Laferriere was not an experienced truck driver and did not have a commercial driver’s license, he first had to complete driving school and the initial orientation. After successfully completing ...

When I first began practicing law, changes in law and policy had to be found in advance sheets (those were made of real paper, FYI) .  That was followed by the advent of web based legal research, which at the time, I thought was groundbreaking.  Never could I have imagined a time when there would be a need for me to become a “Twitter follower” to be up on the latest changes in the law.  Of course, I never thought that a reality television star would get elected president, so what do I know? In June of 2017 a Twitter message from the president announced a major change in policy regarding transgender people serving in the military.  Since the Twittering had been going on for some time by June, I should not have been surprised, but I was.  I was surprised not only because this was a major policy change being announced on Twitter and it doesn’t usually happen that way, but also because there was no real explanation for the change.  That came later, becau...

Employers, remember the lesson that we learned from the Watergate scandal: the cover-up is worse than the crime. If you find yourself facing a lawsuit, the worst thing you can do is destroy evidence. Doing so can carry serious penalties, and can make an employer look guilty when it isn’t. An employer in Florida narrowly avoided a potentially disastrous result last week after it was found to have wrongfully destroyed evidence. The employer, a Florida-based restaurant chain, was being investigated by the EEOC for potentially discriminating against older job applicants. As we have discussed, the Age Discrimination in Employment Act prohibits employers from refusing to hire someone 40 or older based on that person’s age. The EEOC claimed that the employer wrongly destroyed emails, job applications, and records of job interviews during the EEOC’s investigation. The judge overseeing the case agreed with the EEOC, and found that the employer was wrong to destroy these documents. It...

Quote of the Day “Nothing in Section 213(a)(1) allows the Department [of Labor] to make salary rather than an employee's duties determinative of whether a “bona fide executive, administrative, or professional capacity” employee should be exempt from overtime pay” – U.S. District Court Judge Amos Mazzant, challenging the Department of Labor’s 2016 overtime rule. The Story On October 30, 2017, the Department of Justice (“DOJ”), acting on behalf of the Department of Labor (“DOL”), filed an appeal with the Fifth Circuit challenging a Texas district court’s ruling which invalidated the Overtime Final Rule. Brief History On March 23, 2016, President Obama directed the Secretary of Labor to ““modernize and streamline the existing overtime regulations for executive, administrative, and professional employees.”  In response to that directive, on May 23, 2016, the DOL published a final rule which required employers pay those employees a minimum of $913 per week, as compared...

Regularly, employers must address issues involving employee policies that require the disclosure of certain prescription drugs that may affect an employee’s ability to do his job.  A recent case out of Washington D.C. involving an F.B.I. agent and steroid use sheds some additional light on this subject. In 2012, FBI agent Matt Litton was fired from his job for failing to disclose that he had been using testosterone and human growth hormone (“HGH”) on agency medical forms.  Litton said that he thought that the use of these substances did not need to be disclosed because they were being used to treat his infertility which had nothing to do with his ability to perform the essential functions of his job.  The FBI took the position that the use of the drugs needed to be disclosed and that Litton’s failure to do so was untruthful.  The F.B.I. also took the position that it did not believe Litton’s stated reason for using testosterone and HGH.  The F.B.I. believed...

As has been chronicled over the past several years, Illinois state and local governments have continually been faced with tremendous financial strain.  Recovery from the 2008 financial crises, often referred to as “the Great Recession,” has been slow in coming or seemingly non-existent.  As a result, financial strain has been placed at the forefront of collective bargaining negotiations, as Illinois employers have taken the position that wage freezes or below cost-of-living increases are necessary in the current economic climate while unions, on the other hand, have claimed that employers have a sound, stable financial condition sufficient to support multi-year wage increases. Indeed, Arbitrator’s have recognized the current economic climate and have not discounted employer’s positions regarding its financial difficulties.  While arbitrators are sympathetic to these genuine concerns, however, recent awards show that arbitrators have not endorsed employer claims of inabil...