The Workplace Report with Ancel Glink

Some employers use performance evaluations as a tool to encourage and set goals for employees as opposed to rating their performance over the relevant period because they fear the demoralizing effect of a poor (or even satisfactory) evaluation. Goal setting is a positive method of keeping performance on track, but it cannot replace an honest evaluation. A Kansas district court reminded employers last week of the dangers in issuing a positive evaluation to an employee when in reality performance issues existed. In Fuller v. Meredith Corporation , plaintiff, age 47, was a news anchor for a local TV station for 12 years when the general manager decided not to renew her contract. He cited to performance problems by her, both on and off the air, as the reason for the decision. Plaintiff sued the company claiming that she was fired because of her age and gender. The court determined that plaintiff was entitled to a trial because a question of fact existed as to whether the company’s...

Illinois law closely scrutinizes non-compete and non-solicitation agreements, and in the event a court finds them to be too restrictive on the employee, it usually will not hesitate to find the agreement to be unenforceable. Therefore, it is imperative that employers enlist the help of attorneys with considerable experience in this area of law when drafting such agreements. The importance of doing so was made clear in a recent case out of the Northern District of Illinois. The case, captioned Call One, Inc. v. Anzine , involved an employer who brought suit against one of its former sales representatives for violating a non-compete agreement and misappropriating trade secrets. The non-compete agreement prohibited her from soliciting any customer of her employer to sell telecommunications services or products after she had ceased working for the employer. The employee argued that this non-compete agreement was overly broad, since it prohibited solicitation of a large number of poten...

Earlier this month, a California Court of Appeals upheld a $500,000 jury verdict in favor of an employee for disability harassment. Augustine Caldera has a speech impediment that causes him to stutter when he speaks. He began his career as a correctional officer at a state prison in 1994 but later transferred to the administrative segregation unit of the prison. This was when a sergeant in the unit began mocking and mimicking Caldera’s stutter. Caldera noted on three occasions that this occurred in front of a large number of employees. On one occasion, James Grove mimicked Caldera’s stutter over the prison’s broadcast system immediately after Caldera made an announcement. Once Caldera was off the radio, Grove took over and mimicked what Caldera had just previously said. This announcement, and Grove’s mocking of it, was heard by about 50 employees within the facility. Immediately after this happened, another employee commented on the situation, to which Caldera responded, “[Y]...

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... Given the activity at the Illinois General Assembly, we will have a number of new laws to report on over the next few days/weeks. Today, we report on a new law affecting elected township officials. Pursuant to P.A. 100-868 , township officials who are elected to a township position (or appointed to fill a vacant elected position) are prohibited from also being employed by the township. The prohibition applies to township trustees, supervisors, highway commissioners, clerks, assessors, and collectors. The law becomes effective January 1, 2019.

Check out the latest episode of Ancel Glink’s Quorum Forum podcast where I discuss major changes to the law governing the way unions operate in the wake of the Supreme Court’s landmark decision in Janus v. AFSCME, Council 31 . You can listen to the podcast on the following podcast platforms: • iTunes • Soundcloud • Tune In • Google Play You can also visit the podcast’s website by clicking here . Questions or show ideas? Send them to podcast@ancelglink.com . Also, feel free to email me if you have questions about the Janus decision, unionization, or labor and employment issues in general.

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... Yesterday, the Government Severance Pay Act became law when it was approved by the Illinois Governor. P.A.  100-895 . We  reported   on this legislation when the bill was introduced earlier this year. Under the new law, any covered unit of government that enters into a contract or employment agreement, or renews or renegotiates an existing contract or agreement, with an officer, agent, employee, or contractor must include the following provisions in the contract: (1) a requirement that severance pay may not exceed an amount greater than 20 weeks of compensation; and (2) a prohibition on payment of severance pay if the individual has been fired for misconduct by the unit of government. Misconduct is defined in the new law to include, among other things, the following: conduct that is a delib...

A recent decision by the Seventh Circuit Court of Appeals highlights the importance of paying commissions to employees as soon as practicable. Waiting too long to pay commissions, even if this wait is in accordance with employment contracts governing when commissions should be paid, could be in violation of the  Illinois Wage Payment and Collection Act .  The case, titled  Daryl Sutula-Johnson v. Office Depot, Inc. , involved a plaintiff who sold furniture for Office Depot. She received a commission on furniture she sold, and Office Depot usually paid these commissions 45 days after the end of each quarter. The Illinois Wage Payment Act requires employees to be paid twice a month, but creates an exception for commissions, stating that they can be paid monthly.  The court held that because Office Depot paid its commissions 45 days after the end of each quarter, and not monthly, it was in violation of the Wage Payment and Collection Act. It rejected Office Dep...

With newly appointed members joining the National Labor Relations Board, comes new considerations for employers. Recently, the Board has looked at the question that many employers find themselves asking: “When has an employee’s ‘outburst’ gone too far?” While the Board has not created a specific test to answer this question, it has determined an important guidance on how it will be addressed in the future. The National Labor Relations Act protects employees when they make an attempt to improve working conditions for themselves and other workers. However, as we have seen in previous blog posts (see  here and here ), employees do not always conduct themselves in the most professional manner in certain situations. While acting in “unprofessional” manner might not be enough to lose the protection provided by the Act, an employee can, and sometimes does, go too far. When tackling this issue, the Board has a number of considerations they take a look at. The Board considers wher...

Yet another lawsuit has come to light that reminds us all of just how important active prevention of sexual harassment is in the workplace. Alorica, a company that provides customer support services to a number of Fortune 500 firms, recently found this out the hard way. And what is the price Alorica is paying to put an end to such a lawsuit? $3.5 million. The Equal Employment Opportunity Commission filed its lawsuit against the company in 2017 with allegations that began in 2012. The claims were serious enough to result in Alorica’s agreement to pay such a high settlement amount. The claims highlighted events from two female employees, among many others involved, alleging almost constant verbal and physical harassment. The first employee, whose events prompted the lawsuit, alleged that her supervisor harassed her at a press conference by telling the employee that his “piece” was so big and that he would “pimp slap hoes.” Additionally, the same supervisor would talk about his...

NLRB General Counsel Peter Robb recently issued a memorandum outlining how his office plans to prosecute claims of unlawful workplace rules, and it is something that employers should probably become familiar with. This memorandum comes in light of the NLRB’s Boeing decision ( 365 NLRB No. 154 (Dec. 14, 2017)), which created a new employer-friendly standard as to how the NLRB would prosecute claims of unlawful workplace rules. Take a look at our discussion of the Boeing decision by clicking here . The Boeing decision established three categories for evaluating employer work rules: 1) rules that are generally lawful; 2) rules that merit a case-by-case determination; and 3) rules that are plainly unlawful. The NLRB’s memo identifies the proper category for a number of typical workplace rules. Category 1 (Lawful) Rules: These rules are generally lawful, as they either do not implicate an employee’s rights under federal law or because an employer’s business interests outweigh an...

Last week, the United States Court of Appeals for the District of Columbia revived a claim raised by a former teacher of a nonprofit afterschool program that was dismissed in 2014. In 2013, Brien Hill began working for Associates for Renewal in Education Inc. (ARE), a non-profit that provides both care and education programs to underserved children and adults. Hill was employed by ARE as a teacher and program aide in their three-story building located in Washington, D.C. Due to a surgery that he underwent that resulted in the amputation of his leg, Hill uses a prosthetic leg. Because of this, he requested accommodations for his disability, including being assigned a classroom on a lower level of the building and for a classroom aide to assist him in supervising students. Hill’s accommodations were granted by ARE up until August 2007 when Hill was reassigned to a classroom on the third floor of the building with no assistance of a classroom aide. Hill alleges that he expressed ...

Last month the U.S. Department of Labor officially rescinded the pro-union persuader rule enacted during the Obama era. The persuader rule required employers and any consultants, including legal assistance, to publicly disclose certain information . The rule included mandatory disclosure of firstly, the identity of any outside lawyer or consultant working with an employer who was seeking to impact the decision to unionize; secondly, the goals, terms, and conditions of any such arrangement; and finally, any activities either performed, or to be performed in the future, by the consultant. The rule was first introduced in March 2016, but due to challenges beginning only one month later, was never fully implemented. The National Federation of Independent Business was joined by four business groups to make this first challenge to the rule, arguing that it interfered with both the employer’s right to get confidential legal advice and the employer’s right to communicate with workers reg...

The Illinois Attorney General has issued her office’s opinion on the rights and obligations of unions and public employers in light of the Janus opinion rendered a little over a month ago by the U.S. Supreme Court, finding fair share fees to be unconstitutional. In the Guidance, dated July 20, 2018, the AG offers the following opinions: The Janus decision does not change any of the rights and duties of public employers or unions that represent public employees except with respect to fair share fees. (This presumably includes the unions’ obligation to represent all employees in unionized job titles); Employee can choose to join a union and can voluntarily agree to pay fair share fees if they wish; The Janus decision does not change the validity of prior authorized dues deductions (not fair share fees though) or employees’ rights to organize and engage in collective actions, including bargaining. The AG also weighed in on the issue of whether a public employer should dis...