The Workplace Report with Ancel Glink

Host families in Massachusetts are showing support for an au pair company’s argument to the First Circuit to refrain from classifying and treating au pairs as employees, and thus requiring them to follow state labor laws. Rather, the parties involved wish for au pairs working within the United States to be identified as individuals participating in a cultural exchange program, enhancing the program’s aspects that are considered its hallmarks. Specifically, Cultural Care Inc. , the company bringing the lawsuit against the Massachusetts attorney general’s office, argued that classifying au pairs as employees would fundamentally alter the program in two major ways. First, it would dramatically change the relationship between the families and the au pairs. In particular, participating families point out that the relationship between a host family and an au pair is vastly different than that of a traditional nanny. Au pairs become part of the family. They generally are included in tra...

No fault attendance policies have become hugely popular with employers over the past decade or so. Rather than setting aside sick leave, vacation leave, parental leave, etc., employers have increasingly just permitted employees to take a certain number of days off regardless of the reason. Many no-fault attendance policies work by assigning a certain number of points for an absence, coming into work late, or leaving early. For example, if you come into work an hour late, you will be given one point. If you miss a day of work, you will be given three points. Employees are permitted 40 points during the year. Exceed that number, and you will be fired or docked pay. Such a policy is straightforward and easy to administer. There is a catch, however. The Equal Employment Opportunity Commission (EEOC) has recently proven hostile to such policies. The EEOC has raised concerns that such policies do not allow for individualized assessments of employee circumstances, and may therefore ...

Late last month, Gov. Rauner signed into law, amendments to the Illinois Nursing Mothers in the Workplace Act , which expand benefits to nursing mothers in the first year after childbirth. While the Act has always secured the right of nursing mothers to take reasonable breaks to express milk or breast feed during their work day, the amended Act requires that these breaks now must be paid time. Additionally, while the original language of the Act provided that breaks for expressing milk or breast feeding must run concurrently with breaks already provided to the employee, the amended Act states that these breaks may run concurrently with other breaks in the work day, giving nursing mothers more flexibility for either breast feeding or expressing milk while they are at work. The amended Act only applies to employers with five or more employees and working mothers are only entitled to its benefits for one year after the birth of the child. Employers are relieved of their obli...

You might have noticed the increasing number of buildings throughout the City of Chicago displaying signs with the name of the company “WeWork.” WeWork is a fairly new company that provides shared workspaces for businesses. They are popping up everywhere, and WeWork intends to continue its expansion around town and in the suburbs. Like many successful start ups, the company owners want to prevent its employees from poaching their business plan and becoming their competitors. And, as the company grows, it has a growing number of employees to keep from taking their good idea and competing with them. WeWork had previously required comprehensive non-compete agreements from almost every one of its employees, regardless of the employees’ positions or whether they had knowledge of, or access to, confidential information. This non-compete agreement included employees such as cleaning crews, mailroom workers, executive assistants and baristas. The non-compete agreement prohibited these em...

Last month Governor Rauner vetoed a bill that would have expanded the Illinois Human Rights Act to employers with 15 employees or less. The Illinois Human Rights Act is the State’s principal anti-discrimination act and prohibits discrimination against employees on the basis of race, gender, religion, pregnancy, disability, sexual orientation, and gender identity, among other classifications. The Act functions in much the same way that Title VII of the Civil Rights Act of 1964 functions on the federal level, but is even broader. Most of the Act’s provisions only apply to employers with at least 15 employees, although some of the provisions apply to all employers, like those prohibiting discrimination based on pregnancy or prohibiting sexual harassment. The proposed legislation, House Bill 4572 , would have expanded the Act to all employers. The Governor’s decision to veto the bill is unquestionably good news for small businesses. Small businesses in Illinois already face a nu...

Earlier this year the U.S. Supreme Court reversed a Sixth Circuit decision , emphasizing the law that collective-bargaining agreements (CBA) are to be interpreted in accordance with the ordinary principles of contract law. In this case, CNH Industrial N.V. v. Reese , particularly highlighted the idea that a contract is not deemed ambiguous unless it is subject to more than one reasonable interpretation. The case arose when a number of retired employees of the construction equipment manufacturer CNH filed suit against their former employer seeking lifetime health benefits and an injunction preventing CNH from changing those benefits. The dispute stemmed from a collective-bargaining agreement signed in 1998, expiring in May 2004, that provided health care benefits under a group benefit plan to certain employees who retired under the pension plan. Those who filed the lawsuit sought a ruling to declare the health care benefits under the CBA are vested for life. The Sixth Circuit a...

A former male employee of a small Chicago grocery store brought suit against his employer alleging several years of ongoing and constant unwanted sexual touching and taunting, and racial discrimination by his male co-workers. In 2003, Robert Smith began working at the meat counter of Rosebud Farm, a local Chicago grocery store. It was less than three weeks after he started his job there that the other workers behind the meat counter began grabbing both his genitals and buttocks during work. As he continued his job at Rosebud, Smith alleges that this behavior got worse. He claims that his male co-workers not only continued this harassing behavior, but also repeatedly reached down his pants, mimed oral and anal sex, and told him to “go back to Africa.” While the shop employs individuals of both genders, with 6-7 female employees and 15-16 male employees, testimony by both Smith and other witnesses established that only men were the ones subjected to this kind of behavior at Ro...

The Illinois Human Rights Act is the primary Illinois law prohibiting employment discrimination, making it a violation of Illinois law for employers to discriminate against an employee based on that employee’s race, religion, gender, pregnancy status, sexual orientation, gender identity, disability, and other characteristics. It provides many of the same protections as Title VII of the 1964 Civil Rights Act, and in fact broadens those protections. Therefore, employers should take note of any change made to the Act, including the changes made a couple of weeks ago. After a month of hearings before the Senate and House Task Forces on Sexual Misconduct, on August 24th Governor Rauner signed into law P.A. 100-1066 , which makes some notable changes to the Act. These include: Increasing the time an employee has to file a charge with the Department of Human Rights from 180 days to 300 days from the time of the alleged civil rights violation. Permitting an employee to file a lawsui...

Recently the media has reported that tennis great Serena Williams is prohibited from wearing her somewhat well known “cat suit” while she competed in the French Open because the attire was not consistent with the image of the tournament. Williams, who reportedly almost died after childbirth from complications of a blood clot, claimed that the “cat suit” was a health aide because it is compression clothing, much like compression socks or sleeves, to prevent future formation of blood clots. While certainly Williams is not an employee of the French Open tournament, the issue does raise the question of whether certain clothing can be a reasonable accommodation of a disability in the workplace under the Americans with Disabilities Act. This can be an especially sensitive issue in jobs which have appearance or uniform requirements. In an office setting, it might be as simple of a question as whether a staff member can wear gym shoes which are otherwise prohibited by the employer’s dres...

Last week, the U.S. Department of Labor (DOL) issued six advisory opinion letters offering employers guidance on the application of the Family and Medical Leave Act (FMLA) to organ donors and a no-fault attendance policy. Employers may want to check the letters out for themselves, but here is a summary of what they said: Organ Donors Can Take FMLA Leave The DOL stated in one of its letters that organ donors can take FMLA leave. The FMLA allows an employee to take up to 12 weeks of unpaid leave to care for their own serious health condition or the serious health condition of a family member. The DOL stated that even though organ donations are elective surgeries, they nonetheless qualify as a serious health condition, and therefore someone donating an organ can take FMLA leave.  No-Fault Attendance Policy Complies with FMLA The DOL also held that an employer’s no-fault attendance policy did not violate the FMLA. Under the policy, employees accrued points for tardines...