The Workplace Report with Ancel Glink

The IRS recently announced the contribution limits to 401(k) plans for 2019. Important takeaways for employers from the announcement include: The amount of money that employees under 50 can contribute to their 401(k) plans has increased by $500 from $18,500 to $19,000. The amount that employees over 50 can contribute also remains unchanged at $24,000. The levels remain unchanged due to the small increase in inflation over the past year. The amount that employers can contribute to a 401(k) plan increased slightly from $35,500 to $36,000, and the total amount that can be contributed to a 401(k) plan increased from $53,500 to $54,000. Here is a table listing the contribution limits to 401(k) plans going back to 2011: Year Employee Contribution Limit Maximum Employer Contribution Maximum for All Contributions Catch-up Amount 2019 $19,000 $37,000 $56,000 $6,000 2018 $18,500 ...

The following is a re-post of an article from  The Municipal Minute , an Ancel Glink local government blog edited  by  Julie Tappendorf   ... After a county employee assaulted a woman volunteer, the victim sued the county arguing that the county was liable for the acts of its employee. In Doe v. Vigo County , the Seventh Circuit Court of Appeals determined that the county could not be held liable because (1) the employee’s job did not require close contact with vulnerable members of the public and (2) there was no evidence the county pursued a policy or custom of tolerating this type of behavior. The employee worked for the county parks department where he oversaw volunteers including those completing community service. The victim alleged the employee brought her to a restroom, locked the door, and sexually assaulted her. The employee was arrested and eventually convicted of criminal confinement and official misconduct. In finding for the county, the Court ...

Earlier this week the 3rd District Appellate Court affirmed a Henry County Judge’s order dismissing the suit of a retiree for himself and others, against the City of Geneseo claiming that the City violated the Pension Protection Clause of the Illinois Constitution and breached an alleged contract with the retirees when it changed its retiree health insurance contributions in 2011 as part of City-wide cost savings measures. The City had traditionally adopted its personnel policies by ordinance, referred to as the Personnel Ordinance. Included in it was a retiree health insurance policy providing that the City would fund an escalating portion of a retiree’s health insurance premium post retirement based on the employee’s years of service. The rising cost of health insurance, coupled with the failing economy, led the City in 2011 to change this post-retirement benefit by, among other measures, capping the City’s contribution towards premium. In making the changes, the City relied on ...

It was a little more than a year ago that the #MeToo movement began, and many of us in the labor and employment community wondered if it would lead to an increase in sexual harassment lawsuits. Data recently released by the Equal Employment Opportunity Commission (EEOC) suggests that it has. The EEOC data shows that there was a 12% increase in charges alleging sexual harassment in FY 2018 versus FY 2017. There were nearly 1,200 findings that there was a reasonable likelihood of sexual harassment in the workplace in 2018, compared with 970 in 2017. The data also shows that the agency recovered $70 million in sexual harassment settlements and lawsuits in FY 2018 as opposed to $47.5 million in FY 2017. The agency also filed 50% more sexual harassment lawsuits in 2018 as opposed to 2017. It is hard to know whether this is just a temporary spike in sexual harassment litigation or whether this is the new reality. Either way, employers need comprehensive sexual harassment policies i...

The Illinois legislature amended two important employment statutes, expanding rights of employees in the state to sue their employers. Two important amendments to the Illinois Human Rights Act  both expand the time for filing a charge from 180 days to 300 days from the date of the alleged discriminatory action and allow employees to immediately request a right to bypass the Department of Human Rights (IDHR) investigation procedure in favor of filing suit in court. Expanding the time for aggrieved employees to file a charge with the IDHR from 180 days to 300 days creates a time limit consistent with the EEOC. More importantly to employers, the amendments to the Act now require the IDHR to notify charging parties within 10 days of filing a charge of their right to opt out of the agency’s investigative process and file suit directly with the courts. Charging parties have 60 days to then make that opt out request. Designed to cut down on the backlog of cases and the general le...

Often employers base discharge decisions on several reasons related to an employee’s conduct, performance or a combination of the two. It may be that an employee who had marginal performance developed an excessive absence problem which forced the employer to decide whether that employee was still a valued contributor to the organization. While it is okay to have more than one reason for discharging an employee, it is not okay to reference only the “last straw” or most recent issue which ultimately led to the discharge decision. This was brought home again in the recent 7th Circuit case of Donley v. Stryker Sales Corporation . The plaintiff in that case sued her former employer for retaliatory discharge when she was terminated shortly after she filed an internal sexual harassment complaint on behalf of another employee. The employer filed a position statement in response to plaintiff’s EEOC charge stating a reason for her discharge. When plaintiff filed a suit in federal court, the...

The Illinois Secure Choice Savings Program Act (820 ILCS 80/1) is set to roll out on November 1. Are you ready? The Act requires private sector employers who have more than 25 employees and who have been operating in Illinois for at least two years to participate in the Illinois Secure Choice program or another qualified retirement plan. Other qualified retirement plans include 401(k) plans, Simple IRAs, and SEP-IRA plans, among others. Employers who are required to participate in the Secure Choice program must withhold 5% of an employee’s compensation from his or her paycheck unless the employee opts out of the program or requests a different amount to be withheld. Employers then remit the amount withheld to the state-run program. Employers are not permitted to make any contributions. The program is administered by a seven-person board, which contracts out the administration of the fund to a third-party. The Secure Choice savings plan is a Roth IRA. The default investment option...

Many jobs require limited or no accommodation when a worker is pregnant because the work is not physically strenuous. Some jobs, though, present concerns for the pregnant worker almost right off the bat. Police Officer, Firefighter and EMT or Paramedic come to mind immediately, where the physical demands of the jobs can place a pregnancy at risk. Both the federal Pregnancy Discrimination Act (PDA) and the state Human Rights Act prohibit discrimination of pregnant employees and require employers to make reasonable accommodations to pregnant workers. The question though for local government employers of police, fire, paramedic and similar workers with physically demanding jobs is how to accommodate an employee who really can’t do the job at all due to pregnancy. Generally, pregnant workers who are unable to do their job request a temporary light duty assignment. For a brief period of time, Illinois law required that pregnant police officers were entitled to light duty while un...

Last May, the Supreme Court issued a landmark decision that permitted employers to require employees to give up their right to bring a class action lawsuit against the employer and instead arbitrate such a dispute. In light of this, should you require your employees to sign a class action waiver? Here are some pros and cons to doing so that you might want to consider. PROS Arbitration is usually cheaper than litigation. Arbitration does not involve most of the formalities that litigation generally involves. There is no complex pleading stage or formal discovery. And there is no trial. Rather, the parties submit their evidence to an arbitrator in a more informal setting than litigation, which tends to reduce the cost. Arbitration is faster than litigation. As noted above, arbitration is more informal than litigation, so the complex procedures and delays associated with litigation are not a part of arbitration. Therefore, disputes referred to arbitration are typically reso...

It was recently reported that one of the larger law firms in the country had begun the practice of asking female attorneys in its litigation group whether they anticipated becoming pregnant in the upcoming year. The firm justified the question by stating that it was designed to assist in budgeting. The report did not state whether the firm was also asking their male associate attorneys whether they were planning on becoming fathers in the next year, leading many to conclude that either the firm is anti-pregnancy or it doesn’t expect that men will take any significant amount of time off for the birth of their baby. As one can guess, questioning whether female associates were planning a pregnancy didn’t sit very well with them, or many others who read the same report. Immediately, there was social media buzz on the topic with many stating that the question is illegal. Actually, it’s not. It’s certainly insensitive, maybe even ignorant, and possibly evidence that certain firm leader...

Effective January 1, 2019,  Public Act 100-1101  (Service Member Employment and Reemployment Act) consolidates and updates various Illinois provisions regarding the rights of Illinois employees called to active duty. In addition to basic rights provided in the Act for employees of private employers, the Act provides additional benefits for public employees. Public employers are currently required to pay differential pay to employees mobilized to active military duty ( 50 ILCS 140/1 ). The new Act will require payment of concurrent pay during periods of military leave for annual training. Public employees will continue to receive full compensation as a public employee for up to 30 days per calendar year for such training, and the training leave may be intermittent. Differential pay will continue to be required for all forms of active service, except such pay is limited to 60 days for voluntary active service as defined under the Act. Employees may elect to receive accrue...

Illinois companies have taken a hit these last couple of weeks over the biometric timekeeping systems they’ve been using with their employees. We reported last October on the increase of complaints against employers for violating the Illinois Biometric Information Privacy Act . Although the Act was implemented back in 2008, there was an upsurge in class action lawsuits against Illinois employers who use biometric timekeeping within their businesses in 2017. Under the Act, in order for biometric information (i.e., fingerprints) to be collected, used or stored, a business entity must obtain a written release from the person from which the information is collected. Additionally, the Act requires a business to have a written schedule for retention and disposal of any biometric data collected, used or stored. Since September 24, 2018, four lawsuits have been filed against Illinois companies involving violations of the Biometric Information Privacy Act. Of these four lawsuit...

Right to work laws are getting more attention lately as scrutiny on public and private unions intensify.  A “right to work” law prohibits unions from compelling union membership by employees in private sector workplaces or jobs that are represented by a union. Public sector employees have long been free of compulsory union membership, but until earlier this year when the U.S. Supreme Court issued is landmark decision of Janus v. AFSCME, public employees who declined union membership still had to pay a fair share fee which was to cover the cost of negotiating and representing non-union employees in covered job titles. In response to business concerns in the area that they were at a competitive disadvantage to businesses in some neighboring states which have “right to work” laws, the Village of Lincolnshire adopted a unique ordinance in 2015 which essentially created a right to work area within the Village limits by banning union-security agreements within the Village, by fo...

When I was in law school, one of my professors told me that the golden rule in a jury trial is to under promise and over deliver to the jury. Don’t make promises to the jury that you can’t keep, and don’t make promises that you don’t need to make. Employers should heed this advice when drafting their employee handbooks. Employee handbooks are often riddled with unnecessary promises that require the employer to do certain things that it has no reason to require itself to do. For example, employers often promise in their employee handbooks to provide annual performance reviews at the end of the year. The end of the year is always crazy with the holidays and year-end activities, so such a promise only provides the employer with needless extra work. If the employer runs out of time to conduct a performance review, an employee may argue that this was a breach of the employment contract for which the employer could be held liable. More problematic for employers are promises to engag...