The Workplace Report with Ancel Glink

Last month, the United States Department of Labor (DOL) issued an opinion letter eliminating the “80/20” rule for tipped employees . Under the Fair Labor Standards Act, employers can take a “tip credit,” which allows them to pay employees who receive tips less than the minimum wage, as long as their tips will increase their hourly rate to more than the minimum wage. The 80/20 rule prohibited employers from taking a tip credit if an employee who performed tipped and non-tipped work spent more than 20 percent of his or her time engaging in non-tipped work. The Department of Labor rescinded that rule and said that it will consider an employee to be engaging in work for which the tip credit is permitted if that employee engages in activities that are directly related to tip-producing activities. You can see that list of activities by clicking here . So, for example, filling salt shakers and cleaning up tables would be activities that are directly related to tipped work, and therefore...

The following is a re-post of an article  from  The Municipal Minute , an Ancel Glink local government blog edited  by  Julie Tappendorf   ... The Illinois General Assembly recently enacted Public Act 100-1143 amending the Public Employee Disability Act (PEDA) to expand disability benefits. Currently, PEDA requires a state or local government employer to continue to pay a police officer or firefighter, who is injured in the line of duty and unable to perform his or her duties, the employee's salary for a one-year period without requiring the employee to use sick leave or other leave time. This new law extends PEDA benefits to a "full-time paramedic or a firefighter who performs paramedic duties" . The Act is effective January 1, 2019. The bill had been vetoed by Illinois Governor Rauner but the Illinois Senate and House voted to override the veto.

A few years back we talked about a case in which a Costco customer stalked one of the company’s employees while she was at work. He would ask her creepy, personal questions while she was alone in the back aisles of the Costco store where she worked, and would disguise himself and stare at her while she restocked items. He did this on a number of occasions, and the employee, understandably frightened, complained about it to Costco. Costco had a pretty tepid response to this behavior, which clearly constituted stalking. It did not ban the stalker from the store, but merely told him not to talk with the employee anymore. Costco told the employee to report any instances of further harassment to her supervisor. However, when she did this, her managers did very little, and on one occasion even told her to be friendly to her stalker. Over the next 13 months, he visited the Costco store at least 20 times to watch the employee and ask her creepy questions. The employee finally went to...

I was recently asked to review a client’s tattoo policy and some proposed modifications. While doing so, it occurred to me that all personal appearance policies have some potential risk for claims of discrimination. That said, it is worth exploring and considering some potential pitfalls to an overly restrictive personal appearance policy including but not limited to tattoos, body piercings, religious garments and other potential forms of “expression.” Policies that govern personal appearance are typically facially neutral, meaning that they apply the same to everyone regardless of race, gender, age, religion etc. However, just because a policy applies to everyone equally, that does not mean that its application might not have a discriminatory effect on a certain group or groups of people.  It is worth remembering that the EEOC issued guidance a few years back with regards to the use of criminal convictions as a blanket reason for refusing to hire an applicant. The EEOC found...

Plaintiff, Lydia Vega, was a Chicago Park District Parks and Recreation Supervisor in 2011 when the Park District launched an investigation that she was falsifying her timesheets after receiving an anonymous tip to that effect. The investigation took an unprecedented five months and was conducted by all of the HR investigators hired to conduct these types of inquiries. A report was ultimately issued; finding that although the plaintiff’s time entries were inaccurate, it didn’t find that she engaged in any other misconduct. Despite plaintiff’s voluminous documentation refuting the report’s findings, she was discharged for timesheet falsification. She filed suit claiming national origin discrimination and retaliation . At trial, a senior investigator acknowledged that not only was the investigation of plaintiff remarkably long, but that she was the only employee who was discharged just for timesheet falsification without a theft of time or any other allegation. He also acknowledged ...

All employee terminations are difficult. Some are downright bad, such as when the employee cries or, worse yet, when they are so angry that you get worried that they may lose control. Most employers recognize that even though their decision is well grounded, it is still a blow to the employee being let go. In all but the most egregious cases of misconduct, the following are tips for a more successful termination: Always consider a severance in exchange for a release A severance can go a long way in helping the employee transition from employment. Always conditioned on execution of a release and waiver of claims arising from the employment relationship, it is a relatively inexpensive way to avoid litigation, especially if the discharged employee is a member of any protected class under state or federal anti-discrimination laws. Obviously, when the employee has engaged in egregious misconduct, a severance is rarely offered. Always be respectful of the employee Except in the ...

According to Reuters , a class action suit was filed last week against Amazon because the company allegedly fired a disproportionate number of black and Latino drivers based on background checks that the company performed. Amazon claims that it performs its background checks on all drivers, and any disparity against black and Latino drivers is inadvertent. Even conducting background checks in a race-neutral way could pose a problem for Amazon, however. If a certain policy has a “disparate impact” on a particular group, i.e. it negatively affects one group more than another, this might still violate the law. If a plaintiff can show that an employer’s policy has a disparate impact on one group, then the employer must prove that the policy is related to the job that the person possesses and is necessary for that job. So, a background check policy that fires a disproportionate number of black and Latino drivers for things that have nothing to do with driving, like drug possession for ...