The Workplace Report with Ancel Glink

Municipalities should take note of a recent arbitration decision that gives them more power to decide who they will hire, as opposed to having those decisions made by the union. The case involved the City of Mattoon , who decided to eliminate its ambulance services and have them operated by private companies. The union representing the ambulance services filed a grievance, claiming that doing this violated the Substitutes Act , which prohibits municipalities from appointing anyone to serve as a substitute for a firefighter who is not part of the union. The union argued that the Substitutes Act prevented the City from replacing qualified firefighters or paramedics with unqualified employees, and that only those who went through the appointment process before the City’s Fire and Police Commissioners could be properly qualified. Therefore, ambulance services could only be performed by full-time firefighters belonging to the union. The arbitrator found, however, that what the City...

We have often written about how the FLSA is deceptively tricky ; while the basic rules of the law are simple: pay minimum wage , pay time and half for hours worked over 40 in a week and keep adequate records of time worked and wages paid . The cosmetics company Ulta probably thought that it was following the law when it paid an aesthetician time and one half of her hourly rate for hours worked over 40. But a Chicago federal judge says that her FLSA complaint can go forward because she adequately alleges that not only did the company fail to pay her when she worked through her meal and break times but also that her rate of pay, on which her overtime rate was calculated, failed to include her commissions. Commissions payments can confound an employer trying to calculate the right overtime rate. First of all, commissioned employees often meet a FLSA exemption from overtime either as a white collar or outside salesperson exemption. Retail establishment employees who earn more ...

The ripple effect of the Janus decision continues. Many readers are aware of the somewhat surprising Purple Communications decision where the NLRB overturned prior case law upholding employer restrictions on using company email for personal use. The union in that case persuasively argued that email has become such a common method of communication that to deny all use of company email for union messaging unfairly restrains otherwise reasonable union activity. Now the company is using the Janus decision to strike back. In its current appeal of the NLRB decision to the 9th Circuit Court of Appeals, the company, Purple Communications, is arguing that requiring employers to allow their email system to be used for union activity infringes on employers’ rights in the same way that fair share fees violate public employees’ free speech rights by forcing them to subsidize messages or positions of unions about which the employers disagree. We’ll keep you posted on the Purple Communic...

If there were an award for the world’s most heartless boss, I think this lady would take the cake. In a shocking display of heartlessness, a boss essentially fired an employee for not coming to work because that employee was taking care of her son who was on life support. You can read the whole article by clicking here , but you can get the important details by reading the boss’s and employee’s text exchange, which the employee posted on Facebook: As the exchange shows, in response to the employee telling her boss that her son was on life support and that she would not be returning to work until he recovered, the boss responded: “That isn’t how we do things, so I’ll accept that you’re quitting.” The boss apparently drew a pretty hard line, saying that “if you can’t come to work that’s quitting” and “There is no reason you can’t work and I will not tolerate drama.” In addition to being heartless, the boss also must not have been knowledgeable about employment law, because...

If you ever wonder how important it is to train employees and supervisors about sexual harassment and to engage in active prevention of that conduct, check out what happened to the IHOP owner who clearly didn’t address the issue with employees. The owner of two IHOP restaurants in southern Illinois has agreed to pay $875,000 to 12 employees and former employees who claimed that two managers and three cooks sexually harassed or assaulted them. The franchisee also agreed to fire the alleged perpetrators. A U.S. District Judge in East St. Louis approved a consent decree between the EEOC, which brought the suit on behalf of the employees, and 2098 Restaurant Group LLC, which denied any wrongdoing. The commission said the manager of an IHOP in Glen Carbon had made inappropriate comments to several female employees and assaulted at least two of them, including a manager holding a steak knife to a waitress' throat after she rejected him, and on another occasion he tried to trap...

In the Janus decision which found compulsory payment of fair share fees unconstitutional for public sector employees, Justice Sam Alito wrote that exclusive representation of individuals in union represented public sector job titles “ significantly restricts the rights of individual employees ” and is a “significant impingement on associational freedoms that would not be tolerated in other contexts.” With these words, and the Janus decision itself, organizations are already charting the expansion of the decision to destroy the exclusive right to represent public sector employees who hold job titles within a bargaining unit. The Buckeye Institute already has filed suit in Minnesota on behalf of a St. Cloud University professor against the union representing faculty there, claiming that the Janus decision clarified that the First Amendment protects the professor from being forced to associate with a union. Similarly, a spokesman for the National Right to Work Legal Defense Foun...

What do Papa Johns, a big law firm, and a tech company have in common? They are the most recent companies to lose their leaders, and presumably some of their value, while gaining media disasters, because of inappropriate statements or behavior by their CEO’s. As many have read, the head and founder of Papa Johns stepped down after a recording was revealed of him using “the N word.” A couple of months ago, the managing partner of big law firm Latham and Watkins accepted the resignation of their managing partner after months of scandal over inappropriate texts of a sexual nature, and then alleged threatening texts to forestall disclosure of the previous texts, by their managing partner to a Chicago area woman, who he actually had never even met. The tech industry too is suffering a spate of resignations of company leaders for inappropriate behavior that has made their governing boards worry about damage to their business reputations. So, what gives? Why are leaders of compan...

Last Monday, President Trump nominated to the Supreme Court Brett Kavanaugh, a judge on the DC Circuit Court of Appeals. This is a pick that employers should be happy about, as Judge Kavanaugh has generally sided with employers during his time on the bench. Judge Kavanaugh is regarded as a textualist, which means that he attempts to apply the law as it is written, and does not consider what the legislature might have meant when drafting the law or whether the law should be reinterpreted based on new social developments. This means that he almost certainly will not find that Title VII of the Civil Rights Act of 1964 bars discrimination against gay, lesbian, or transgender employees, as the statute does not explicitly state as such. Judge Kavanaugh has also sided with employers regarding the right of workers to organize and engage in criticism of their employer. In Southern New England Telephone Co. v. NLRB , Judge Kavanaugh held that the employer did not violate the National La...

Connecticut became the latest state to ban employers from asking job applicants about their salary history . The new legislation applies to all Connecticut employers "with one or more employees”.  Much like other state laws and local ordinances, the Connecticut law prohibits employers from inquiring about a prospective employee’s prior salary, including directing third parties, such as head hunters or recruiters, from making that inquiry. The job candidate may voluntarily disclose salary history though. Connecticut employers are still permitted to ask job candidates about other elements of his or her compensation structure, such as commission or bonus structures “as long as such employer does not inquire about the value of the elements of such compensation structure.” In addition, the new law protects the right of employees to discuss their wages and compensation with other employees of the employer. Employees may not be prohibited from disclosing the amount of their wages, o...

To the surprise of many, millennials are concerned with something other than work-life balance and culture when searching for a job. Many millennials are particularly concerned with their retirement. This insecurity stems from the anxiety that millennials possess regarding not retiring when they want to, or outliving their retirement savings. There are also more part-time employees in the millennial generation than any other generation in the workforce. This hinders their ability to put money towards retirement. Additionally, and most importantly, four out of ten millennial employees cited that eligibility requirements set by their employers are the reasons why they do not participate in the employer’s retirement plan. These requirements include working at that job for a minimum number of years, or a minimum number of hours. To entice millennials to apply for your place of employment, consider how attractive your retirement plan is to a younger generation that is concer...

The administration in Bald Head Island, North Carolina were right when they concluded that they would not run afoul of the First Amendment rights of police officers that they decided to discharge for exchanging inappropriate text messages on their personal phones about supervisors, co-workers and others. What they apparently didn’t realize is that they could find themselves in hot water for publicly disclosing reasons for discharging the officers. The Village of Bald Head Island has a combined fire, police and EMS department, headed by a director of public safety, Caroline Mitchell. She got wind of the fact that four members of the department had exchanged a chain of text messages containing derogatory comments about the competency of other department members as well as administration and questioned Mitchell’s sexual orientation, with one officer making reference to her as a man. After seeing these texts, Mitchell decided that these four officers should be discharged. Mitchell tes...

In response to the newly focused attention on prevention of sexual harassment in the workplace, companies are taking a myriad of steps to better educate workers at all levels to recognize harassment and to establish guidelines so employees have clarity of what is unacceptable behavior. But, have some employers gone too far? Last week a number of media outlets reported that the company Netflix had issued an anti-harassment policy that prohibits employees from staring at others for more than five seconds. Netflix staff has also been admonished to avoid lingering hugs, asking people out more than once and to steer clear of that person if they say no. Before addressing the possible absurdity of a five second stare policy, let’s spend a minute thinking about its probable intent. Often harassing behavior is not overt. It’s actions like always standing too close, touching that may seem inadvertent, extra or unwelcome attention in the way of flattery or seeking to always be paired wi...

The burden of coordinating a response to a natural disaster falls most heavily upon local governments. Local governments are expected to be the first organizations on the ground providing emergency services, moving vulnerable people to safe locations, and cleaning up the damage. However, the operations of local governments themselves can be impeded by the natural disaster. In order to guard against this risk, local government HR departments should have plans in place for dealing with natural disasters. Here a few things to keep in mind when developing these plans: Have a plan to respond to each natural disaster: Local governments should determine which natural disasters they will most likely encounter, and then develop a plan to respond to each of these. In Illinois, local governments should have plans in place to deal with tornadoes, flooding, and extreme cold. Determine your personnel needs: Local governments should determine which personnel would be needed during a disas...