The Workplace Report with Ancel Glink

In what might be the first court decision on the issue, a Pennsylvania federal court struck down as unconstitutional part of Philadelphia’s ordinance which prohibited employers from asking about salary history from prospective job candidates or using salary history to set prospective wages. Responding to the problem of wage inequality for women and minorities, the City of Philadelphia enacted an ordinance to address wage inequities among these individuals. The ordinance prohibited an employer from inquiring about a prospective employee’s wage history (“the Inquiry Provision”); and made it illegal for an employer to rely on wage history “at any stage in the employment process” to determine a salary for an employee (“the Reliance Provision”). The basic premise of the law’s prohibitions is that allowing employers to formulate job offers based on prior wages that are historically lower for women and minorities perpetuates the wage inequity problem. Not surprisingly, the court hel...

Rarely is a court crystal clear on a rule of law. This is never so true as when it applies to employment law, as employment relationships apparently offer an infinite number of ways to go wrong. So, employers were grateful last year when the 7th Circuit Court of Appeals found in the case of Severson v. Heartland Woodcraft, Inc. , that an employee who requires a lengthy medical leave of absence is not a qualified individual under the ADA. It seemed like that was something to take to the bank. Not for long. Last week, a federal district court judge opened that door for a lengthy leave as an ADA accommodation just a little bit. In EEOC v. Midwest Gaming and Entertainment, LLC , the gaming company’s employee had already received a six month medical leave of absence, when in January 2016 he requested a two month extension to undergo additional cancer therapy. Determining that the request was not a reasonable accommodation, the company discharged the employee. The employee filed a clai...

In what is probably the most important labor and employment law decision of 2018, the Supreme Court ruled last week that class action waivers in arbitration agreements are enforceable. An arbitration agreement is a contract in which an employer and employee agree in advance to resolve any disputes through arbitration rather than going to court. The Supreme Court ruled that employers could require employees to waive their right to file a class action lawsuit and instead enter into arbitration. The courts were split on this issue, with the Seventh Circuit and Ninth Circuits holding that these agreements violate the provision of the National Labor Relations Act protecting employees’ right to engage in concerted activity, i.e. activities in which employees join together to discuss workplace issues, and the Fifth Circuit holding that they did not. The Supreme Court sided with the Fifth Circuit, noting that “Congress has instructed federal courts to enforce arbitration agreements accor...

With a combination of warmer weather and the influx of seasonal (often student) workers, employers often adopt a more relaxed dress code for summer months. As the layers of clothing come off, employers need to be aware of the potential legal liabilities associated with enforcing their summer dress codes. Two concerns generally arise when establishing a dress code at work: 1) Freedom of speech or expression claims and 2) discrimination claims based on either gender or religion. Dress codes are most commonly challenged as a violation of an employee’s right to freedom of expression when they prohibit wearing of religious or political symbols. This issue may arise more frequently with student workers as a result of the popularity of “body art” and more revealing clothing that exposes the art, although it may always be an issue when an employer’s dress code impacts an employee’s ability to wear or display facial hair, tattoos or religious symbols. Courts will analyze these types of cla...

An employer in Pennsylvania has just been sued by the Department of Labor for failing to pay its employees for the time they spent changing in and out of their work clothes. Employers should take note, because under certain circumstances, time spent changing in and out of work clothes can be compensable time under the Fair Labor Standards Act (FLSA). The employer was a manufacturer who required its 7,000 employees to change into protective clothing before work and then change out of this clothing and shower after work. It did not pay its employees for any of this time, which, according to the Department of Labor, was a violation of the FLSA, and warranted the lawsuit. Under the FLSA, if an employee cannot perform his or her job without first engaging in a preliminary or postliminary activity, then the employee must be paid for the time spent engaging in the preliminary and postliminary activity. Compensable preliminary and postliminary activities must be “integral and indispe...

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 a recent court ruling, a New Jersey judge imposed a $10,000 sanction on a lawyer after she claimed that she was out of town on a family emergency, but her Instagram account proved otherwise. (Siu Ching Ha v. Baumgart Cafe of Livingston, et al) . Ms. Franco represented a group of plaintiffs in a Fair Labor Standards Act case against four New Jersey cafes. After she missed a deadline to file a motion for class certification on behalf of the plaintiffs, she filed a motion for an extension of time. In her motion, she stated that she was forced to leave the country due to a family emergency in Mexico City, and attached her itinerary. The defendants' attorneys filed an objection to the motion for an extension, and pointed out that Ms. Franco's Instagram account showed that she was not in Mexico City on the date ...

This week, the Supreme Court declined a petition to review an Eleventh Circuit Court of Appeals decision that found an employer who rescinded a job offer to a qualified African-American woman because of her dreadlocks, did not violate Title VII. In EEOC v. Catastrophe Management Solutions , the employer had a personal appearance policy, including a provision that stated it is unacceptable to have “excessive hairstyles.” The EEOC sued on behalf of a female job candidate whose job offer was rescinded because she wore dreadlocks in violation of the policy. and claimed this policy constituted race discrimination because dreadlocks are associated with people of African descent. The Eleventh Circuit found that dreadlocks are not “an immutable characteristic of black individuals.” Further, the Eleventh Circuit found it was unreasonable to infer that in applying a company policy pertaining to hair grooming, the employer discriminated against the woman because of her race. This ...

In an effort to improve transparency, Uber and Lyft recently ditched their mandatory arbitration policies for sexual assault claims. This decision follows after Microsoft Corporation chose to waive its arbitration requirement for sexual harassment claims in its applicable contracts back in December. This trend does more than just provide victims of sexual assault a choice of venue. By eliminating the mandatory arbitration clause for sexual harassment claims, a victim may now choose to speak publicly about the facts of his or her case. The way a company reacts to these claims may no longer be confidential and may consequently set the tone for how that company is portrayed to the public in terms of its workplace culture. The “Me Too” movement this year paved the way for a public conversation about sexual assault and made it became apparent that the ability to speak openly about it is a powerful tool to implement change. Uber and Lyft’s recent decision to delete their mandatory arb...

We always advise our clients to avoid making up a reason for discharging an employee, even if the rationale for that is to “be nice” or soften the blow of the termination. It’s simple: if an employer has a lawful reason for discharging an employee (and we assume that they do) they should notify the employee of that reason when they terminate the employee. When employers change their “story” or give shifting reasons for taking action against an employee, it raises suspicion that the employer is hiding the real reason for the action and that this real reason is unlawful. Take this case in point. Yesterday, the 10th Circuit Court of Appeals reversed the dismissal of the plaintiff’s pregnancy and retaliation claims against a  company that provides services to a correctional facility in Kansas. The plaintiff worked in the facility dispensing medications to detainees. When she became pregnant, one of her supervisors allegedly made a comment that he didn’t know how he would handle a...

The list of courts holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender individuals continues to grow, as a court in Texas recently followed courts in the 7th Circuit, the 2nd Circuit, and the 6th Circuit in adopting such a holding. This holding makes it increasingly likely that the Supreme Court will rule on this issue in the near future. The case, Wittmer v. Phillips 66 Company , involved a transgender woman who was interviewing for a position with Phillips. The company ran a background check on this employee, and learned that she lied during her interview. This caused Phillips to rescind a job offer that it had made to her, which in turn caused her to sue Phillips, claiming that she was denied the position because she was transgendered. The court found that there was no evidence that Phillips had discriminated against her because of her gender identity. Had it done so, however, it would have been in violation of Title VII, whic...

In a dramatic lesson on the need to not only document employee misconduct, but to save and safeguard that documentation, a Fresno, California jury last week awarded an ex-employee almost $8 million in her wrongful termination suit against Chipotle Mexican Grill in what can only be described as incredibly unfortunate series of mishaps for the company or a total miscalculation on the part of the restaurant’s supervisors to push the employee out the door. Jeanette Ortiz had worked for Chipotle for 14 years and most recently was earning about $70,000 annually. Her performance evaluations were excellent. She was in line for a promotion that would have increased her salary substantially. Prior to her discharge, she had made a worker’s compensation claim for carpel tunnel syndrome. Then the company discharged her for stealing. She alleged in her lawsuit that her supervisors tried to coerce her into dropping her worker’s comp claim and when that didn’t work, they accused her of stealing ...

This week, the 7th Circuit Court of Appeals ruled that an employee of the Chicago Independent Police Review Authority did not enjoy First Amendment protections of free speech when he was discharged for refusing a directive of his supervisor to change findings in his reports on police misconduct. Lorenzo Davis, an investigator and an intermediate supervisor for IPRA conducted investigations into police misconduct complaints and ultimately prepared reports which stated whether the allegations were “sustained,” “not sustained,” “exonerated,” or “unfounded.” Those reports were sent to the head of IPRA who in turn made recommendations to the Chicago Police Department as to whether an officer should be discharged. In 2014, a new Director of IPRA began directing Davis to change his findings in some of his reports to a more favorable outcome for the subject officer. Davis apparently refused to make changes. In 2015, the Director issued a policy stating that investigators were requir...

We are excited to announce that Ancel Glink has launched a new podcast called “Quorum Forum.” Some of you may be wondering-what is a podcast? A podcast is like an audio blog, but instead of reading about current legal topics of interest to local government officials, employers and employees, you will listen in as Ancel Glink attorneys discuss these issues. In our first episode, we highlight a few cases and pending bills and engage in a discussion about the use of personal cell phones to communicate about government business. Future podcasts will regularly include topics on current issues in labor and employment. They will include subjects such as the balance of employee free speech and employer rights; social media and workplace issues, discipline and discharge in a litigious society and many more topics of interest about workplace rights and obligations. You can listen to the podcast on the following podcast platforms: iTunes Soundcloud Tune In Google Play Don...

I recently came across an interesting case that employers may want to be aware of. The case, Caporicci v. Chipotle Mexican Grill, Inc. , involved an employee who sued Chipotle for firing her after she had a bad reaction on the job to medication that she took for her bipolar disorder. Chipotle has a drug policy prohibiting employees from reporting to work under the influence of alcohol, drugs or controlled substances, and also requires that employees who use medically prescribed or over-the-counter drugs that may adversely affect their ability to perform work in a safe manner notify their manager prior to starting work. An employee in Tampa suffering from bipolar disorder began taking a new medication, which caused her to become dizzy and disoriented at work. She began making mistakes, including folding a burrito upside-down. Her manager sent her home, and she was eventually fired for being intoxicated at work. The manager then emailed company headquarters to inform it that the...

Believe it or not, summer is almost here. Certainly, seasonal hiring is in full swing for many employers as students hurry to line up their summer jobs. Here are five reminders for employers as they hire on their summer staff: Overtime It used to be that the FLSA and state wage and hour laws allowed employers who primarily provide recreation or amusement services were exempt from overtime obligations for seasonal staff. This meant that miniature golf parks, park districts and the like could hire summer staff at or around minimum wage to fill their extra needs without worry about overtime costs. Believe it or not, many employers remain unaware that in Illinois, even seasonal employees are entitled to time and one-half pay for all hours worked over 40 in a workweek . Dress Code Let’s face it, many students have no idea how to dress for work. Add to that the fact that many summer jobs are outdoors or involve some sort of recreational activity, which call for more casual cloth...

Travel time seems to be a constant vexation to employers. Recently, the Department of Labor issued Opinion Letter FLSA 2018-18 addressing several travel pay issues. The Opinion Letter reiterated that travel to and from work, outside of the employee’s normal work day, is not compensable as travel time. Citing the Portal to Portal Act, the DOL stated as follows: The Portal-to-Portal Act provides that employers do not need to compensate employees for:  (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which [an] employee is employed to perform, and  (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 29 U.S.C. § 254(a) . But, let’s say that a non-ex...

Sometimes the hot water that employees and employers get themselves into makes you scratch your head and think “what were they thinking?” Earlier this week, a New York jury awarded a group of employees $5.1 million in a religious discrimination case that was a real head-scratcher from a business point of view. In EEOC v. United Health Programs of America, Inc. , the defendant company, a health network, is owned/operated by individuals who subscribe to a religious belief system referred to as “Onionhead”. The Onionhead religion was created by an aunt of the company’s owners. It’s not a typical mainstream religion. The owners made the employees participate in Onionhead practices at work including: participating in group prayer; candle burning; discussions of spiritual texts; forcing employees to tell one another “I love you”; dimming lights at work to prevent demons from coming through overhead lights; keeping and referring to Onionhead message cards at the employees’ desks. ...

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... SB 3604 ,  that  was recently introduced, proposes to create the "Local Government Severance Pay Act." If passed, the law would require any unit of government that enters into an employment agreement or renews or amends an existing employment agreement to comply with certain statutory restrictions on severance provisions in those agreements.  Firstly, the Act would restrict the amount of severance pay that an employee could be entitled to under the agreement to no more than 20 weeks of compensation.  Secondly, the Act would prohibit any payment of severance to an employee who was fired for misconduct. The Act defines misconduct fairly broadly, to include the following: conduct that would be found to be a deliberate violation or disregard of reasonable standards of behavior;  care...