The Workplace Report with Ancel Glink

Last month, the United States Department of Labor (DOL) issued an opinion letter eliminating the “80/20” rule for tipped employees . Under the Fair Labor Standards Act, employers can take a “tip credit,” which allows them to pay employees who receive tips less than the minimum wage, as long as their tips will increase their hourly rate to more than the minimum wage. The 80/20 rule prohibited employers from taking a tip credit if an employee who performed tipped and non-tipped work spent more than 20 percent of his or her time engaging in non-tipped work. The Department of Labor rescinded that rule and said that it will consider an employee to be engaging in work for which the tip credit is permitted if that employee engages in activities that are directly related to tip-producing activities. You can see that list of activities by clicking here . So, for example, filling salt shakers and cleaning up tables would be activities that are directly related to tipped work, and therefore...

The following is a re-post of an article  from  The Municipal Minute , an Ancel Glink local government blog edited  by  Julie Tappendorf   ... The Illinois General Assembly recently enacted Public Act 100-1143 amending the Public Employee Disability Act (PEDA) to expand disability benefits. Currently, PEDA requires a state or local government employer to continue to pay a police officer or firefighter, who is injured in the line of duty and unable to perform his or her duties, the employee's salary for a one-year period without requiring the employee to use sick leave or other leave time. This new law extends PEDA benefits to a "full-time paramedic or a firefighter who performs paramedic duties" . The Act is effective January 1, 2019. The bill had been vetoed by Illinois Governor Rauner but the Illinois Senate and House voted to override the veto.

A few years back we talked about a case in which a Costco customer stalked one of the company’s employees while she was at work. He would ask her creepy, personal questions while she was alone in the back aisles of the Costco store where she worked, and would disguise himself and stare at her while she restocked items. He did this on a number of occasions, and the employee, understandably frightened, complained about it to Costco. Costco had a pretty tepid response to this behavior, which clearly constituted stalking. It did not ban the stalker from the store, but merely told him not to talk with the employee anymore. Costco told the employee to report any instances of further harassment to her supervisor. However, when she did this, her managers did very little, and on one occasion even told her to be friendly to her stalker. Over the next 13 months, he visited the Costco store at least 20 times to watch the employee and ask her creepy questions. The employee finally went to...

I was recently asked to review a client’s tattoo policy and some proposed modifications. While doing so, it occurred to me that all personal appearance policies have some potential risk for claims of discrimination. That said, it is worth exploring and considering some potential pitfalls to an overly restrictive personal appearance policy including but not limited to tattoos, body piercings, religious garments and other potential forms of “expression.” Policies that govern personal appearance are typically facially neutral, meaning that they apply the same to everyone regardless of race, gender, age, religion etc. However, just because a policy applies to everyone equally, that does not mean that its application might not have a discriminatory effect on a certain group or groups of people.  It is worth remembering that the EEOC issued guidance a few years back with regards to the use of criminal convictions as a blanket reason for refusing to hire an applicant. The EEOC found...

Plaintiff, Lydia Vega, was a Chicago Park District Parks and Recreation Supervisor in 2011 when the Park District launched an investigation that she was falsifying her timesheets after receiving an anonymous tip to that effect. The investigation took an unprecedented five months and was conducted by all of the HR investigators hired to conduct these types of inquiries. A report was ultimately issued; finding that although the plaintiff’s time entries were inaccurate, it didn’t find that she engaged in any other misconduct. Despite plaintiff’s voluminous documentation refuting the report’s findings, she was discharged for timesheet falsification. She filed suit claiming national origin discrimination and retaliation . At trial, a senior investigator acknowledged that not only was the investigation of plaintiff remarkably long, but that she was the only employee who was discharged just for timesheet falsification without a theft of time or any other allegation. He also acknowledged ...

All employee terminations are difficult. Some are downright bad, such as when the employee cries or, worse yet, when they are so angry that you get worried that they may lose control. Most employers recognize that even though their decision is well grounded, it is still a blow to the employee being let go. In all but the most egregious cases of misconduct, the following are tips for a more successful termination: Always consider a severance in exchange for a release A severance can go a long way in helping the employee transition from employment. Always conditioned on execution of a release and waiver of claims arising from the employment relationship, it is a relatively inexpensive way to avoid litigation, especially if the discharged employee is a member of any protected class under state or federal anti-discrimination laws. Obviously, when the employee has engaged in egregious misconduct, a severance is rarely offered. Always be respectful of the employee Except in the ...

According to Reuters , a class action suit was filed last week against Amazon because the company allegedly fired a disproportionate number of black and Latino drivers based on background checks that the company performed. Amazon claims that it performs its background checks on all drivers, and any disparity against black and Latino drivers is inadvertent. Even conducting background checks in a race-neutral way could pose a problem for Amazon, however. If a certain policy has a “disparate impact” on a particular group, i.e. it negatively affects one group more than another, this might still violate the law. If a plaintiff can show that an employer’s policy has a disparate impact on one group, then the employer must prove that the policy is related to the job that the person possesses and is necessary for that job. So, a background check policy that fires a disproportionate number of black and Latino drivers for things that have nothing to do with driving, like drug possession for ...

Belatedly, the IRS recently published the new employee contribution limits for FSA, Commuting and Adoption benefits for next year.  FSA employee contribution limits increase from $2,650 to $2,700 in 2019, while commuting (transit passes and van pool services, along with parking) contributions increase from $260 a month to $265 next year. Adoption assistance contributions increase by $270 to $14,080 annually next year. Many employers conduct enrollment in these programs in October for the following year, making it seemingly too late for their employees to take advantage of the slight increase in non-taxable income.  While no obligation exists for employers to make the maximum contribution available to employers, those employers who have completed enrollment have the option to re-open enrollment before the end of the calendar year to allow employees to increase their contribution limits. Surprisingly, many employees still choose not to use FSA’s. Some surveys estimate ...

During a change in governmental administration, such as the State will undergo soon, many public employees wonder if they will lose their jobs simply because they were hired by, and are presumed to be associated with, the political party who is losing power. It is generally understood that public sector jobs which require close work with and service to an elected official may be impacted by the opposite political affiliation of the employee and the elected official. Courts have long held that elected officials have a right to have politically like minded staff in positions that work closely with them, focusing its analysis on “ whether the job in question entails substantial policymaking responsibility, meaningful discretion to implement the policy goals of elected officials, or a need to maintain the confidentiality essential to enabling robust deliberations entailing disagreement and incorporating political objectives. ” But how do you apply that framework of analysis in any par...

The U.S. Department of Labor recently published updated Family and Medical Leave Act (FMLA) and Fair Credit Reporting Act forms. The FMLA requires most employers to provide employees up to 12 weeks of unpaid leave for medical or family emergencies. You can access the updated FLMA forms by visiting the Department of Labor’s website or by clicking on the links below: WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition WH-381 Notice of Eligibility and Rights & Responsibilities WH-382 Designation Notice WH-384 Certification of Qualifying Exigency For Military Family Leave WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave The Consumer Financial Protection Bureau also recently released upd...

Can we send robots to sensitivity training? Because apparently Amazon’s employee-recruiting artificial intelligence is biased against women. According to the Daily Mail , an artificial intelligence program used by Amazon in Scotland taught itself to downgrade resumes that included words like women’s, as in “women’s chess club champions.” It also downgraded the resumes of graduates from all women’s colleges. It gave preference to applicants who used “male” verbs like “executed” and “captured.” Amazon said that it did not rely solely on this AI to hire applicants. And once it discovered the AI’s bias, it relegated it to minor tasks like ensuring that the same applicant did not apply more than once and other judgment-free tasks. This is not the first time that machine learning has gone awry. In 2016, AI developed by Microsoft had to be taken offline less than 24 hours after its launch after it started to become racist . So, for the time being, the jobs of human recruiters are saf...

Check out the latest episode of Ancel Glink’s Quorum Forum podcast where Keri-Lyn Krafthefer discusses transgender issues, bathroom policy, and how employers need to adapt to a changing workplace. You can listen to this podcast by clicking here or by visiting the following podcast platforms: • iTunes • Soundcloud • Tune In • Google Play You can visit the podcast’s website by clicking here . Questions or show ideas? Send them to  podcast@ancelglink.com .

Let’s say you have a worker with an obvious physical disability. The employee has not requested an accommodation. Nevertheless, you have some concern about the employee’s ability to perform the essential functions of their job. Is it okay to ask that employee if they can do their job? A district court in Hawaii recently found that a question of fact existed as to whether an employer terminated a disabled worker based on similar facts. In Crowley v. Wal-Mart Stores, Inc. , the plaintiff was a store manager who had taken several FMLA leaves for surgery to repair an injured ankle. Nevertheless, he still walked with a cane and wore a boot on the affected foot. On several occasions, his supervisor allegedly asked him if he was still able to do his job. The plaintiff told the supervisor that he was going to file an internal complaint over the remarks, which the plaintiff later overheard the supervisor complaining about to a regional director. While on another leave, preparing for a ...

During its November 30th case conference, the Supreme Court may decide whether to grant the petitions for leave to appeal in one or more of the three cases seeking review of sexual orientation and transgender rights in the workplace. In a case on which we have reported as it has wound its way through the courts, the employer in EEOC v. RG & GR Harris Funeral Homes, Inc. , seeks to overturn the 6th Circuit Court of Appeals decision that it violated plaintiff/employee Aimee Stephens’ rights when it discharged her after she began presenting as a female at work although she was assigned as a male at birth and worked for a time at the funeral home as a male. Stephens sought to comply with the employer’s dress code for female employees. The funeral home’s owner objected on religious grounds to having an employee whom he regards as a man dressing as a woman. This case joins two other cases seeking review of whether Title VII protects the rights of employees who claim discrimina...

While last Tuesday’s election shifted the balance of power in Congress away from Republicans, I don’t see it having much impact on labor and employment law over the next two years. Because the Democrats now control the House and the Republicans have a pretty sizable majority in the Senate, I would expect no major labor and employment legislation to get passed. In fact, I don’t see much legislation of any kind getting passed over the next two years. I don’t see this deviating much from what would have happened had Republicans maintained control of the House. After passing tax-reform last year, the Republicans did not have a very ambitious legislative agenda. No Republicans were talking about major legislative changes to labor and employment law. As for changes to the agencies overseeing labor and employment law like the EEOC and the NLRB, the people serving on those agencies are appointed by the President and confirmed by the Senate, so there are not going to be any changes in...

The following is a re-post of an article  from  The Municipal Minute , an Ancel Glink local government blog edited  by  Julie Tappendorf   ... The U.S. Supreme Court weighed in on the application of the federal Age Discrimination in Employment Act (ADEA) to small state and local government employers in the recent decision Mt. Lemmon Fire District v. Guido . The Court ruled 8-0 that the ADEA applies to state and local governments regardless of the number of employees employed by the unit of government. The ADEA defines “employer” as a “person engaged in an industry affecting commerce who has 20 or more employees” or “(1) any agent of such a person, and (2) a State or political subdivision of a State.” Some government agencies had interpreted the definition to mean that the law only applied to government employers with 20 or more employees. In an opinion written by Justice Ginsburg, the U.S. Supreme Court disagreed, holding that the definition of “employer...

Check out the latest episode of the GovLove podcast where I discuss major changes to the law governing the way unions operate in the wake of the Supreme Court’s landmark decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al . You can listen to the podcast by clicking on the link below: Engaging Local Government Leaders (ELGL) GovLove Podcast "Local Government Law, Unions & the Janus Decision" Let me know what you think about the podcast!

The International Union of Operating Engineers (IUOE) Local 150 recently filed a declaration of disinterest petition , effectively walking away from a small bargaining unit of Naperville Public Works field supervisors. This resulted after three of the six members of the bargaining unit withdrew as union members since the U.S. Supreme Court’s decision in Janus v. AFSCME earlier this year, holding that public employees cannot be compelled to pay agency, or fair share, fees if they choose not to join the union. Six employees comprised the Naperville field supervisor bargaining unit. After three employees withdrew from the union, the IUOE Local 150 filed the declaration of disinterest petition. The day after Local 150 filed its petition, the Illinois State Labor Board issued a revocation of prior certification, relieving the union of its representation responsibilities for the group. The effects of the Janus decision might be felt most in smaller bargaining units like the Naper...

Most employers probably do not think too much about their COBRA notices. These are just standard forms that never change, right? Well, that’s not actually true. As I have discussed , the Affordable Care Act (aka Obamacare) made some pretty major changes to COBRA notices. And if your standard COBRA notice does not contain all of the required information, then each former employee could become a potential litigant. Courts can assess up to $110 per day in fines for deficient COBRA notices and require employers to pay the other side’s attorneys’ fees. COBRA requires employers with 20 or more employees to continue to provide health insurance benefits for recently-departed employees and their spouses and children. While the employer does not have to pay for the former employer’s benefits, it does need to permit the former employee to remain on the employer’s group plan for at least 18 months. The law also requires employers to send out notices to former employees within 45 days of t...

Time Off for Voting Between elections many employers forget that employees are entitled to time off to vote. Here are the rules under State law: 1. Employees are entitled to time off only if they are registered voters; 2. Employees requesting time off must do so prior to election day; 3. The employer may specify the time during which employees may take off to vote; 4. Employees are only entitled to time off if their working hours begin less than two hours after the opening of the polls and end less than two hours before the closing of the polls. So only employees who are working more than an eight hour shift during the hours that the polls are open are eligible for time off; 5. Eligible employees are entitled to this time off with pay. Employers are not only entitled to confirm that the employee requesting time off is actually a registered voter. Further, employers are also entitled to request proof that the requesting employees actually voted. ⧫  ⧫  ⧫...

Sometimes characterizing on-call time can be a little tricky. The general rule under the FLSA is that employees who are working on-call time are either “engaged to wait” or “waiting to be engaged.” As those descriptions suggest, an employer likely is required to pay an employee who is “engaged to wait” and does not have to pay an employee who is “waiting to be engaged.” But how do you tell the difference? The distinction between these is primarily based on the degree of freedom to pursue personal endeavors the employee in question enjoys. So, for instance, FLSA Regulation 29 CFR 785.17 states “ an employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while on call. ” On the other hand, an employee who is free to come and go as they please but, be available by phone and to come in if need be within a certain reasonable period of time, are likely “waiting to be engaged.” Like...

The IRS recently announced the contribution limits to 401(k) plans for 2019. Important takeaways for employers from the announcement include: The amount of money that employees under 50 can contribute to their 401(k) plans has increased by $500 from $18,500 to $19,000. The amount that employees over 50 can contribute also remains unchanged at $24,000. The levels remain unchanged due to the small increase in inflation over the past year. The amount that employers can contribute to a 401(k) plan increased slightly from $35,500 to $36,000, and the total amount that can be contributed to a 401(k) plan increased from $53,500 to $54,000. Here is a table listing the contribution limits to 401(k) plans going back to 2011: Year Employee Contribution Limit Maximum Employer Contribution Maximum for All Contributions Catch-up Amount 2019 $19,000 $37,000 $56,000 $6,000 2018 $18,500 ...