The Workplace Report with Ancel Glink

Many employers are starting to think about additional staffing for the summer. Using unpaid interns remains an option for some employees. The rules are different for unpaid interns depending on whether the employer is public or private. My colleague, Jeff Brown recently wrote on a shift in the test for appropriate unpaid interns in private sector. You can read it here . The U.S. Department of Labor has distinguished interns in the public sector stating that unpaid internships, “ where the intern volunteers without expectation of compensation are generally permissible. ” Public sector employers should exercise care to document the voluntary nature of the relationship. Sometimes employers attach a stipend to a volunteer position to defray the costs related to being a volunteer or intern and to provide minimal remuneration or “spending money” to the volunteer who is devoting substantial time to the employer, whether or not the volunteer or intern is receiving educational credit ...

Tattoos and piercings have become increasingly widespread, especially among millennials. A Harris poll in 2012 found that 21 percent of adults have at least one tattoo. A Pew Research Center study found the number to be nearly 40 percent among those aged 18 to 29. The increasing prevalence of tattoos likely means that many employers have had to confront the issue of tattoos and piercings in the workplace. The good news for employers is that there are no federal or Illinois laws that prohibit them from making employees cover up tattoos in the workplace. No laws prevent an employer from firing or refusing to hire an employee because of his or her tattoo or piercing. As we have discussed , it is not illegal to hire or fire employees based on their physical appearance unless that hiring decision is based upon race, gender, disability, or pregnancy. Additionally, making an employee cover tattoos or piercings probably would not raise any problems for public sector employees. A pub...

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... Lost in the shuffle of numerous bills being introduced in both the Illinois House and Senate is a bill creating the  "Local Government Email Act" . This bill, if passed, would affect the communications of employees, officials, and officers of all units of local government and school districts in the state. We reported on  similar legislation  introduced last year here - that legislation did not pass. The stated policy of HB 4375 is that all emails that are in connection with the transaction of public business sent or received by a unit of local government or school district or an employee, staff member, trustee, board member, elected official, or officer of a unit of local government or school district are public records regardless of the device used to send or receive the email. Section 10(a) of the ...

On Monday, February 26, the United States Supreme Court will hear oral argument in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31 .  Janus is an Illinois case challenging the constitutionality of “fair share fees”-fees authorized by a collective bargaining agreement that are designed to require employees who are not union members to pay their “fair share” of the union’s costs in providing collective bargaining and contract administration services to employees in an appropriate bargaining unit.  Originally upheld by the Supreme Court in the 1977 case of Abood v. Detroit Board of Education , the Supreme Court has agreed to consider whether or not the Abood case should be overruled. The Court has heard arguments on the issues raised in Janus on two prior occasions.  In the first case, the Court avoided the question by ruling that the employees in question-home health aides-were not actually public employees.  In the s...

It’s generally difficult for employers to identify the right decision when two employees engage in an inappropriate relationship and others complain about it. How much, if at all, should it matter to a public employer whether employees engage in relationships which many may find to be immoral? Take for instance, a situation where two police officers, married to other spouses, engage in an extramarital relationship that includes using their work phones for calls and sending numerous personal texts back and forth to each other. What if the relationship becomes so obvious that others in the department as well as the spouse of one of the officer’s spouses complain? This is what happened in a case out of California where the federal Court of Appeals there held that the plaintiff was entitled to the opportunity to prove at trial that her termination violated her constitutional rights. The plaintiff, Janelle Perez, worked for the Roseville police department for approximately six mon...

The flurry of high-profile harassment allegations across various industries (e.g., the movie industry, the Illinois General Assembly, colleges and universities, and most recently professional basketball) has drawn the public’s attention to the issue of sexual harassment. The headlines are filled with stories of sexual harassment in the workplace causing employers to react quickly and appropriately to complaints of sexual harassment. How that is done is important as the investigation and settlement agreements can cause a myriad of unanticipated legal problems. Recent developments-and scrutiny-from National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”), however, shed new light on addressing both investigations and settlement agreements. With respect to confidentiality during the investigative process, the NLRB recently issued a decision concerning confidentiality that should give employers pause when considering whether to include confidenti...

For most employers, there is arguably nothing more important than hiring the right employees. Steve Jobs supposedly once said , “The secret of my success is that we have gone to exceptional lengths to hire the best people in the world.” The reason Jobs felt this way is pretty obvious: a few bad employees can take down a business. One of the primary ways they can do this is by causing harm to customers and coworkers. Not only is this terrible for business, but it can land an employer in legal trouble. Employers have a duty to investigate the background of their employees and ensure that they are not a threat to others. If an employee harms a customer or coworker on the job, the employer can be held liable for it. If the employee is acting within the scope of his job duties, then the employer can be held directly liable for any harm caused by an employee. However, even if an employee is acting outside the scope of his or her job duties, the employer can still be held liable for harm...

Workplace violence is a surprisingly common phenomenon. The Bureau of Labor Statistics estimates that there are between 15,000 and 25,000 incidents of workplace violence each year, although many more incidents may go unreported. 518 people were murdered at work in 2010. Workplace violence can also lead to serious legal problems for employers. Dangerous workplaces may violate Occupational Safety and Health Administration rules. They can also put an employer at risk of lawsuits for negligent hiring, failing to warn employees of known risks, and maintaining an unduly dangerous workplace. Therefore, it is worth it for employers to mitigate the risk of workplace violence. Here are some things that employers can do to reduce the risk of violence in their workplaces: 1. Conduct a workplace analysis . Talk with employees and supervisors, review worker’s compensation and insurance records, and review employee working conditions to determine potential sources of workplace violence....

As the use of emoticons becomes more common in the workplace, it should be no surprise that they are increasingly becoming a factor in workplace litigation. Like non-verbal gestures, emoticons can be subject to varying interpretation, sometimes even inconsistent with the intent of the sender, which can sometimes lead to problems. It reminds me of a case where I represented a municipal employer who had discharged a long time employee because a resident complained that the employee asked for a money to remove his yard waste. No words were spoken, but the employee communicated his condition for removing the waste by rubbing his thumb, index and middle finger together in a gesture that many understand to reference money or the costliness of something. The employee grieved his dismissal, arguing that he never spoke about being paid on the side to remove the resident’s yard waste and that the gesture was subject to numerous interpretations. Fortunately, the arbitrator didn’t buy that de...

Student employees at private universities have generally been excluded from organizing and forming a union. Until 2016, the National Labor Relations Board (“NLRB”) held that private university student employees were not considered “employees” under the National Labor Relations Act (“the Act”) because the relationship with their respective institutions is primarily educational in nature. In 2004, the NLRB decided Brown University and held such graduate assistants did not have the right to unionize under the Act because they had a predominantly academic, rather than employment, relationship with the university. That decision served as the central reason student employees at private universities were prevented from organizing. But that all changed under President Obama’s administration. In Columbia University , a 2016 decision issued by the NLRB that was stacked with Obama appointees, the NLRB overruled that precedent and found student graduate assistants to be statutory employees, ...

Try as you might, it is impossible to prevent all accidents in the workplace. Even if you work in an office, there will probably come a time when an employee injures him or herself in a random act of bad luck. When this inevitably happens, you need to make sure that your response to the accident complies with the law. Here is what you need to do after an accident: 1. Provide medical care to any injured employees. Make sure that you take the appropriate measures to care for the injured employee. Call the paramedics or apply first aid. A failure to do this could leave an employer open to a lawsuit or even penalties from OSHA. 2. Have employees involved in the accident submit to drug and/or alcohol testing (but be careful not to violate the law!). Section 11 of the Workers’ Compensation Act states that employees who refuse to participate in drug and/or alcohol testing after a workplace accident are presumed to have been intoxicated at the time of the accident , and that this ...

It’s certainly not a new phenomenon that a greater number of employees call in sick on the day after The Big Game (we’re not supposed to infringe on the trademarked Super Bowl phrase). Employers might be talking now more about the greater absenteeism on that Monday, and certainly the media and advertisers are having fun with the practice of employees calling in sick on that day. It’s kind of like the day after a holiday, whether it be July 5th, December 26th of the day after Thanksgiving, a lot of employees have overindulged, stayed up late or just in general lack the motivation to go to work that day. Some foresighted employees plan ahead of time to be off, but what about those that just call in absent  the Monday after the S.B. (I’ve refrained from using the words!)? A spike in absences on Super Sick Monday can not only hamper normal operations, but can really irritate employees who have shown up for work. So what can you, as an employer, do about this? Here are a few tips: ...

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... A teacher was fired for her social media activities that referenced a dispute she had with a student in one of her classes. After the student challenged an answer on a test that had been marked wrong by the teacher, both the teacher and the student posted about the incident, and each other, on various social media platforms, including Facebook.  After the teacher's posts were made available to the school, the teacher was terminated. According to news stories about the termination, the teacher's posts included the following: After the semester is over and she's no longer my student, I will post her name, her picture and her bio on Facebook, Twitter, Instagram and LinkedIn. Count on it. For now, I'm bound by university rules that grant her more latitude in freedom of speech than I have. After she graduates and I retire, a...