The Workplace Report with Ancel Glink

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... In PAC Op. 18-005 , the PAC found a public body in violation of FOIA for denying a request for employee compensation records. The requester had filed a FOIA request for a copy of records identifying the salaries paid to all city employees for a two year period. The city denied the request, arguing that the records were exempt from release under 7(1)(c) as release would be an invasion of personal privacy. The denial was appealed to the PAC, which rejected the city's argument, finding that the salary information of public employees is subject to release under FOIA. This ruling is consistent with previous PAC opinions finding that the public is entitled to access salary and compensation records of public employees.

Tucked away in the $1.3 trillion, 2,200 page spending bill last Friday were a few paragraphs that prohibited restaurants from requiring wait staff to share their tips with back-of-the restaurant workers like dishwashers, cooks, and bussers. The law makes it clear that tips belong to the person who received them, and no one else. The spending bill enshrines into law a 2011 regulation passed by the Obama Administration which also prohibited restaurants from redistributing the tips of servers. This provision in the spending bill rebukes a rule proposed by the Department of Labor late last year that would have undone the Obama-era rule and permitted restaurants to redistribute servers’ tips. The Fair Labor Standards Act requires employers to pay at least the federal minimum wage of $7.25 per hour . However, the law provides an exception for workers who receive tips, permitting employers to take a “tip credit” and pay them only $2.13 per hour. The new law applies to both employer...

March Madness is one of my favorite times of the year, despite my less than stellar record of filling out my bracket. And it has become even better over the past few years with The March Madness streaming website , which allows you to watch games from pretty much everywhere at any time. One feature on this website that I find pretty amusing is the “ boss button .” Employees can click this button when they are watching games and a PowerPoint presentation will pop onto the screen to make it look like they are working hard in case any of their supervisors happen to be walking by... Or so I have been told...not that I would ever do such a thing. The problem with March Madness, as things like the boss button show, is that it can sap employee productivity. Time that should be spent working is instead diverted to watching games or filling out brackets. Therefore, employers may want to consider having policies to deal with March Madness in the workplace. Employers should be proactive ...

Let’s say you have a long time employee who becomes disabled. While the employee can’t perform all of the essential functions of their assignment, you want to allow the employee to keep working in hopes that they will recover well enough to resume their regular duties, so you assign the employee to a different job, the duties for which they have no restrictions. Despite being allowed to work in that modified position for over a year, it becomes apparent that the employee is still not able to perform all of the essential duties of his original job. Is there no turning back at that point? Earlier this year, a federal court examined that very question. In Moore v. Wal-Mart Stores East, LP , the plaintiff had worked for Wal-Mart for several years when he suffered a stroke. After returning from medical leave, he could not perform his job of _______ so the company accommodated his current disability by placing him in another position, the duties of which he had no restrictions, with the...

New Jersey joined the growing list of states protecting breastfeeding in the workplace earlier this year when it amended its Law against Discrimination to prohibit discrimination against women who breastfeed or express milk during breaks. The law prohibits an employer from refusing to let a nursing mother breastfeed or express milk during work, and requires employers to set aside a place for the mother to do so in privacy. This place cannot be a bathroom stall, and must be located close to the workplace. Employers also have to provide nursing mothers with breaks throughout the day to breastfeed or express milk, although employers do not have to pay the mothers during these breaks unless the mothers are already eligible to receive paid breaks. Also, if providing the breaks or a location to breastfeed would impose an “undue hardship on business operations,” then the employer can be exempted from doing so. The Affordable Care Act (aka Obamacare) amended the Fair Labor Standards ...

In late February the U.S. Supreme Court again issued an opinion that absent language to the contrary, a collective bargaining agreement that provides retiree health insurance benefits does not create a vested right to those benefits. It also reiterated that the general durational provision of the agreement applies to the employer’s obligation to provide retiree health insurance. In the case of CNH  International N.V. v. Reese , out of Michigan, the employer had agreed to a collective-bargaining agreement in 1998 that provided health care benefits under a group benefit plan to certain “[e]mployees who retire under the ... Pension Plan”  and  “[A]ll other coverages,” such as life insurance, ceased upon retirement. The agreement contained a general durational clause stating that it would terminate in May 2004 but was silent as to whether retiree health insurance benefits vested for life. When the 1998 agreement expired in 2004, a class of CNH retirees and surviving spou...

So your employee notifies you that he is having cosmetic surgery and will need to be off of work for a few weeks. He wants to use his vacation time to cover his absence. You can’t help but be a little irritated because he knows you’re a little short staffed right now and his absence will really put stress on operations. You ask him if he can postpone the surgery for a little while until new employees are hired and trained and he says no. Can you deny him the time off based on your policy that vacation requests may be denied due to operational needs? As a good lawyer, the answer really is that it depends. He may qualify for FMLA leave. Run of the mill cosmetic day surgery, without complications, is likely not covered by the FMLA definition of a “ serious health condition ”. So an employee’s absence for liposuction, or dental implants, for instance, generally does not fall under FMLA protection. A big caveat exists though. The Department of Labor’s Guidance suggests that cosme...

Joining the 7th and 2nd Circuit Courts of Appeals, this week the 6th Circuit held that transgender and transitioning status violates Title VII of the Civil Rights Act of 1964. Finding that  “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex”  and  “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping” , the court reversed the lower court and found that an employer who fired an employee after the worker notified his employer that he was going to begin the transition process upon return from vacation. Prior to the employee's vacation, the employer discharged the worker stating “this is not going to work out” despite the excellent performance record of the employee. (We reported on this case at the lower court level here ). The employer, a Michigan Funeral Home, operated by the majority...

In the wake of the #MeToo movement, a provision seeking to punish employers who engage in confidential settlement agreements for sexual harassment was added to the tax reform bill . The provision prohibits employers from deducting from their taxes the costs of confidential settlement agreements related to sexual harassment or abuse. The costs of non-confidential settlement agreements can still be deducted. However, sloppy drafting and unforeseen consequences may actually turn this provision into one which harms victims of sexual harassment. The final version of this provision, which has been codified as 26 U.S.C. 162(q) , was written so broadly that it prohibits sexual harassment claimants from deducting the costs of their own attorneys’ fees if they enter into a confidential settlement agreement. Previously, these claimants could subtract the costs of their attorneys’ fees from their gross income, therefore only paying tax on the settlement proceeds that they receive. However, se...

The question of whether telecommuting is a reasonable accommodation under the ADA continues to stump many employers - especially those that do not ordinarily allow telecommuting by their employees. Some jobs just require the employee to be in the workplace. A receptionist cannot receive visitors and probably cannot effectively route calls from his or her home. A manager of any kind likely has to be at the workplace at least part of the time in order to manage staff. Hopefully, employers who believe that being in the workplace at least part of the time is an essential function of the job in question have made that clear in both the job description as well as in practice. Here’s one that did not and paid the price. Andrea Mosby-Meachem, an in-house attorney for Memphis Light, Gas & Water Division, was denied a request to work from home for ten weeks while she was on bed rest due to complications from pregnancy. The company took the position that it was an essential function of h...

Earlier this week, the 2nd Circuit Court of Appeals, sitting in New York, became the second federal appellate court to rule that Title VII of the Civil Rights Act of 1964, which, among other things, protects against discrimination based on gender, necessarily includes protection against discrimination based on gender orientation. The only other federal appellate court to make a similar ruling is the 7th Circuit Court of Appeals , which sits in Chicago and includes Illinois, Indiana and Wisconsin in its jurisdiction. The case originated from a skydiving company’s discharge of an instructor, Donald Zarda, in 2010 after he told a female skydiving student that he was “100 percent gay.” He claimed he told her that in response to his perception that she and her boyfriend were uncomfortable with her being strapped to him during instructional sky dives. The company, Atlanta Express denied that Mr. Zarda’s discharge was related to his revelation that he was gay and also argued that Title V...