The Workplace Report with Ancel Glink

It seems like it has been a long time since transgender issues were near the top of the list of employer concerns.  Most employers have revised personnel policies to address transgender issues.  Those that have not should give serious consideration to reviewing their existing employment policies to ensure that they have procedures in place to address issues that may arise with transgender employees.  Now, there is yet another issue to consider when addressing transgender issues in the workplace. In 2017, a new wrinkle in the transgender landscape reminded all employers of the need to stay current on transgender issues.  In Blatt v. Cabela’s Retail Inc. , a federal district court in Pennsylvania expanded protections under the ADA to include those diagnosed with gender dysphoria .  Prior to Blatt , employers did not have to consider the ADA when working with transgender employees because of a specific exclusion that addresses gender disorders. The Blatt c...

If you are a frequent reader of this blog, you will know that we constantly discuss the importance of keeping good records . Good records are essential if you ever face a lawsuit from a former employee. They are also important for promotions and firing, as being able to point to objective reasons for these employment decisions is crucial for heading off lawsuits, in addition to maintaining employee morale. While it is generally good policy to keep detailed records, in many instances it may also be required by the law. A number of both federal and state laws require employers to retain certain employee records for a period of time. These laws are numerous, somewhat complex, and there are, frankly, too many of them to list in one blog post. However, some of the recordkeeping requirements that employers should be aware of include: Payroll data.   The ADA , ADEA , FLSA , FMLA , and Title VII all require employers to keep detailed payroll records for three years after the pa...

Public pension funds have the authority to decide what forms of compensation can be considered part of pensionable earnings. This might include categories of compensation as merit bonuses, overtime payments and the like which are not regular wages or compensation for employees. Last month the Illinois Municipal Retirement Fund (IMRF), one of the largest and clearly the most solvent of the public sector pension funds changed its position on whether cash payments in lieu of health insurance benefits can be considered part of pensionable earnings. At its December meeting, the IMRF Board adopted a resolution that gives employers the option of deciding whether cash paid in lieu of health insurance is reportable earnings to IMRF. This vote was the result of that Board’s review of practices at other public pension funds and the potential financial impact to employers as well as the Fund. Public employers of IMRF participants should keep in mind that they are not obligated to include...

I was recently asked about whether or not an employee can record daily work activities.  While it seems that the answer to such a question should be “no,” it's not that simple. Employers can have policies that cover recording devices in the workplace.  Such policies are not illegal per se.  However, employers must be very careful in drafting those policies so as not to run afoul of the National Labor Relations Act and state labor laws. In June of 2017, the Second U.S. Circuit Court of Appeals considered a case involving Whole Foods .  In the Whole Foods case, the court held that Whole Foods could not maintain a policy that enforced a broad ban on recording devices in the workplace.  The Whole Foods policy banned all recording devices unless management had given the employee prior approval for their use.  The National Labor Relations Board reviewed the Whole Foods policy and found that it violated the National Labor Relations Act because employees ...

The Illinois Labor Relations Board’s General Counsel recently issued a significant but relatively unnoticed declaratory ruling regarding minimum staffing for police officers. During negotiations for a successor collective bargaining agreement, the Village responded to the Union’s initial proposal by proposing to remove a provision of the agreement regarding minimum staffing on the basis that it was a permissive subject of bargaining and refused to include the provision in the successor agreement. The Village also asserted during the negotiations that the issue of minimum staffing is not subject to interest arbitration. In response, the Union proposed the status quo asserting that the inclusion of the minimum staffing provision in the prior collective bargaining agreement rendered it a mandatory subject of bargaining. Prior to an Interest Arbitration hearing in 2017, the Village unilaterally filed a Petition for Declaratory Ruling seeking a determination as to whether a “minimu...

I came across an interesting case recently which highlighted the importance of taking precautions to keep employee medical information confidential. The case, which is a few years old now, involved an employee who had suffered an injury at work and needed to take time off to recover. One of the employee’s coworkers processed his worker’s compensation claim and monitored his treatment. The coworker then posted on Facebook, “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” The employee, George Shoun, then sued his employer for violating the Americans with Disabilities Act (ADA) by disclosing his health information. The court refused to throw out the case, finding that the employee had stated a proper claim for a violation of the ADA. The basis of the employee’s claim was section 102 of the ADA, w...

What do you do about the employee who comes to work sick? The coughing and sneezing is not only making everyone else in the workplace cringe and rub sanitizing lotion on their hands, but if everyone catches this virus, how will the work get done? Employers struggle with how to manage their workforce during cold and flu season. On the one hand, employers typically encourage good attendance and praise the dedication of employees who come to work even though they feel under the weather. On the other hand, nobody wants to be around someone with a bad cold or flu; aside from the fact that colds and flu are very contagious . For every “trooper” who works through an illness, many more will stay home until fully recuperated. It’s Okay to Send a Sick Employee Home First of all, employers have the obligation through state and federal regulation and often by collective bargaining agreement, to provide a safe work environment. This can include contagious disease. In order to protect t...

Amid the chaos that was 2017, transgender issues seemed to fall below the radar for a while; or Twitter, whatever-it’s all a blur. However, despite the fact that there is a seemingly constant stream of other distractions for employers and Americans in general to worry about-nuclear annihilation, climate change, who has better hair–Kim Jong-Un or Donald Trump? -we still need to be cognizant of transgender issues in the workplace. If asked to summarize transgender issues regarding discrimination and harassment at the federal level in a word, my word of choice would be “confusing.” The EEOC has issued guidance which clearly and unequivocally states that any discrimination related to gender identity or harassment related to gender identity or transition constitutes unlawful discrimination. If this were a play, that would be Act I. Act I would be followed by a crash of thunder, maybe some lightning, and then the entry of U.S. Attorney General Jeff Sessions  (When I see him, I alway...

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... Last week, the Illinois House introduced a bill that would amend the Freedom of Information Act to address severance agreements with employees accused of sexual harassment or sexual discrimination. If enacted, HB 4242 would require units of local government to publish notice within 72 hours of making any payment to an employee under a severance agreement. The notice would have to be published on the local government's website and in a newspaper with the largest circulation in the local government for a period of 7 days and would have to include the following information: the name of the person receiving the payment; the amount of the payment; and the fact that the person receiving the payment has been accused of sexual harassment or sexual discrimination, as the case may be. Interestingly, although FOIA a...

Last month, a Michigan District Court addressed the issue of whether an employer can force a seemingly unstable employee to take a medical examination before returning to work. In Monroe v. Consumers Energy , Ms. Monroe had worked for Consumers Energy for nearly 13 years when her supervisor had noticed a change in her behavior. Monroe was losing focus and concentration, in turn affecting her work performance, and had stopped interacting with her co-workers. Following these observations, at the end of 2013, Monroe filed a complaint with her employer stating that she was being tracked and surveilled by her co-workers. Among the allegations made in this complaint, Monroe stated that her co-workers were intercepting her personal text messages on her personal phone, placing listening devices in both her office and the office next to her, recording her both in her office and at her home with video cameras, and installing a GPS tracking device in her car and listening to her through her ...

This may be a sad reflection on the current state of my life, but I actually enjoy coming to work over the holidays. The roads are free from traffic, the office is quiet, and I can for once catch up on the backlog of work that I inevitably have pending.  This is, of course, because most sane people use their vacation time during the holidays. This, in turn, might lead employers to field more questions about vacation time during this time of the year, so I thought that it might be a good idea to review some of the laws in Illinois governing vacation leave. Employers are not required to offer vacation time. However, if they do, they must pay an employee for all of their unused vacation time if that employee leaves the company. An employer cannot require an employee to forfeit his or her vacation time pay upon leaving the company for any reason. The only exception to this is if a collective bargaining agreement permits the employer to do so. Employers can implement use-it-or-...

The issue of whether a public employer can discharge an employee as a result of critical remarks about the employer seemingly will never go away. Late last week, an Illinois federal district court dismissed a suit * against the City of Calumet City after it discharged a Deputy Fire Chief allegedly for a series of critical remarks he made about the City and its officials. As many readers are aware, the City is no stranger to controversy and allegations of political retaliation. In the current case, the plaintiff started his employment as a firefighter and eventually was promoted to Deputy Fire Chief. He also apparently regularly posted “political commentary” on his Facebook page. The plaintiff alleged that he had a phone conversation with the Personnel Director and the Assistant to the Mayor about his Facebook commentary but was not directed to stop posting them. Later, according to plaintiff, the Fire Chief informed him that he was being discharged “due to concerns over his ...

In a fairly unsurprising development given several federal appellate court decisions, the U.S. Department of Labor (DOL) has disposed of its six-factor test for assessing whether a worker is an intern or an employee, for purposes of coverage under the Fair Labor Standards Act (“FLSA”).  Most recently on Dec. 19, 2017, the Ninth Circuit became the fourth federal appellate court to expressly reject the DOL’s six-part test for determining whether interns and students are employees under the Fair Labor Standards Act. In Benjamin v. B&H Education, Inc. , for example, the Ninth Circuit Court of Appeals rejected the “rigid” six-factor test and instead adopted the primary beneficiary test as articulated by the Second Circuit. As a consequence of this case, and in lieu of the six-factor test, the DOL pronounced on January 5, 2018 that it has adopted the “primary beneficiary test” to determine whether interns qualify as employees under the FLSA.  The DOL’s change in position is...

In a recent opinion the U.S. District Court for the District of Columbia ruled in favor of the AARP and vacated certain rules issued by the EEOC. The AARP brought suit against the EEOC over its regulations about incentives and penalties embedded in wellness plans. The challenged rules allowed employer-sponsored wellness plans to offer employees discounts of up to 30% of the cost of self-only health coverage in exchange for disclosing certain private medical information or to impose penalties of up to 30% for not doing so. In crafting the 30% incentive and penalty rule, the EEOC concluded that these limitations would not violate either the Americans with Disabilities Act (ADA) or the Genetic Information Nondisclosure Act (GINA), by maintaining disclosure of certain medical conditions as voluntary. The court found that the EEOC failed to explain its decision to construe the term ‘voluntary’ in the ADA and GINA to permit the 30% incentive level adopted in the rules. However, ins...

One of the biggest pieces of news out of last month’s tax reform bill was the repeal of the Affordable Care Act’s individual mandate. The individual mandate requires each person to have health insurance, and imposes a fine of 2.5% of the person’s total household income or $695, whichever is greater, if an individual does not maintain health insurance. The individual mandate will remain in effect throughout 2018, with 2019 being the first year that individuals are not required to purchase health insurance. Many expected the Republican-controlled Congress to do away with the requirement that employers with more than 50 employees offer health insurance plans to all full-time employees, but Congress never was able to repeal that section of the Affordable Care Act, and they do not seem to have any plans to do this in 2018. While the employer mandate remains, the repeal of the individual mandate will undoubtedly still affect employers. It is possible that fewer employees will enroll in...

Each year the Workplace Report predicts what the hottest labor and employment topics will be for the upcoming year. Here is our list for 2018: Sexual Harassment: This is kind of a no brainer. Once so many celebrities are involved, the public pays attention, even though it’s an issue that has deserved attention for decades. Despite gender discrimination laws (the law from which the prohibition of sexual harassment is derived) being in effect for more than half a century, the problem obviously still exists, even in its most ridiculously blatant forms (hello, Matt Lauer), and hopefully the time has come where our society finally says “no more.”  While legal prohibitions to this behavior in the workplace haven’t solved the problem thus far , the key is clearly workplace training . Equal Pay: This issue is cousin to sexual harassment in that it too is rooted in gender discrimination. The vestiges of unequal pay based on gender persist, although today they more likely result f...

The Illinois Labor Relations Board found earlier this week that the City of Chicago engaged in an unfair labor practice when it expanded it expanded its body camera program beyond the “pilot program” to which the parties had agreed. The Body Worn Camera Pilot Program was initiated in 2014 with a limited number of cameras located in Chicago’s North Side neighborhoods. Three years later, in December 2017, this program expanded that number of cameras to each and every one of the 7,000 patrol officers employed by the Chicago Police Department. The police union contends that this extension was a violation of their bargaining agreement, looking specifically at the disciplinary impact of such cameras as a mandatory subject of bargaining. The City, on the other hand, argues that such effects were bargained for already in their existing in-car camera program. It argues that since the safety issues associated with the camera equipment were already negotiated in the in-car camera program, ...

As reported in Ancel Glink’s Municipal Minute on December 28, 2017 , changes to the Illinois Juvenile Court Act affect public employers in a number of ways.  Effective January 1, 2018, the amendments to the Act expand the definition of juvenile records to include municipal ordinance violations, provide for automatic expungement of certain law enforcement records involving events that occurred before the affected individual’s 18th birthday, and provide, among other things, that “all juvenile records which have not been expunged are sealed and may never be disclosed to the general public or otherwise made widely available” . For readers of the Workplace Report, a major concern is the effect of the amendments on employment applications.  The law states: Applications for employment within the State must contain specific language that states that the applicant is not obligated to disclose expunged juvenile records of adjudication or arrest.  Employers may not ask, in a...

Here’s an interesting piece of information for the new year. Sexual harassment in the workplace has been unlawful for over 50 years ! If it were a person, AARP would have already sent it a membership card.  Not since the Senate confirmation hearings of Justice Clarence Thomas has the media focused so much attention on sexual harassment as it has right now. Honestly, one would think this is somehow a new thing that’s happening in the workplace. I guess workplace sexual harassment falls into that same category as many other issues, or diseases, or causes, that don’t really get the attention they deserve until championed by celebrities. We will forego comment on what kind of statement that makes. The good news is that for whatever reasons, everyone has a renewed interest in ensuring that workplaces remain free of harassment and that proper measures are in place to address this misconduct if it does occur. We daresay that few industries remain untouched by this new found focus, in...

While there was much discussion about the minimum wage during the 2016 election cycle, that discussion has died down somewhat this year, at least on the national level, as there has been no serious attempt to raise the federal minimum wage, which is still at $7.25 per hour. Despite this, states and dozens of local governments will see increases in their minimum wage in 2018. The chart below sets forth the increases in those states. While the minimum wage in Illinois will stay steady at $8.25 per hour, both Cook County and the City of Chicago are set to see minimum wage increases, with Cook County’s climbing from $10/hr to $11/hr and Chicago’s climbing from $11/hr to $12/hr on July 1, 2018. Below is a chart listing the states which increased their minimum wage on January 1 (unless otherwise indicated), comparing their 2018 minimum wage to that in 2017: States 2018 Minimum Wage 2017 Minimum Wage Alaska $9.85 $9.80 ...