The Workplace Report with Ancel Glink

You may have heard that with last month’s revisions to the Cannabis Regulation and Tax Act, the law legalizing cannabis in Illinois, employers can now withdraw a job offer if a job applicant tests positive for cannabis. While we understand why some attorneys are interpreting the changes to the law that way, we disagree with it. It is our position that once the Cannabis Regulation and Tax Act goes into effect next month employers should not withdraw a job offer solely because an applicant tests positive for cannabis.  The confusion lies with the amendments to section 10-50(e) of the Act, which now reads:  “Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for: (1) actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline...

Recently the 7th Circuit Court of Appeals out of Chicago, in Brigid Ford v. Marion County Sheriff’s Office , ruled in favor of the Marion County Sheriff’s Department, holding that demoting an employee can be a reasonable accommodation under the ADA . Plaintiff, Brigid Forbes, was a deputy sheriff in Marion County when she was involved in a car accident on duty which severely injured her hand. After a year on light duty, her doctor reported that she would never fully recover the use of that hand, always have some degree of pain and would have permanent restrictions which would prevent her from performing all the essential functions of her job as a deputy sheriff. The Sheriff’s HR Department met with the plaintiff and offered her three choices, to resign, quit or be demoted to a job that she could perform. The demoted position paid less than she was currently making. The plaintiff chose demotion and the parties worked out reasonable accommodations for her chronic pain and relate...

Jingle bells, jingle bells, a lawsuit on its way! Alcohol, colleagues, and those holiday work parties are the perfect ingredients for unwanted employer liability and litigation. Personal injury and sexual harassment claims are merely examples of what might arise from a holiday work party. Alcohol is often a staple at holiday parties, but; an employer’s liability as a result of overindulgence may depend on whether attendance at the party is mandatory.  In  Stephenson v. Universal Metrics, Inc. , a motorist’s estate attempted to hold an employer liable after its employee became drunk at a work-sponsored function and, on his way home, killed both himself and another motorist.  Luckily for the employer, the Wisconsin Supreme Court held the employer was immune from liability under Wis. Stat. § 125.035. Similarly, in  Saylesv. Piccadilly Cafeterias, Inc.  plaintiff was permanently injured in a two-car accident after he was struck by one of defendant’s empl...

In the flurry of bills passed in last Spring’s legislative session, one that fell under the radar was the Artificial Intelligence Video Interview Act (codified at 820 ILCS 42/1, et seq.).  The Act attempts to regulate AI interviewing programs that employers are increasingly using. According to TechRepublic, 29% of employers regularly use some form of AI . The Act requires employers to: Notify each job applicant before the interview that AI may be used to analyze the applicant’s video interview and consider the applicant’s fitness for the position. Provide each job applicant with information before the interview explaining how the AI works and how it evaluates applicants. Obtain consent from the job applicant before the interview for the use of the AI program. The law leaves a lot of questions unanswered. First, what are the consequences if an employer fails to comply with this law? It says nothing about the damages or penalties that will be assessed against an e...

On January 1, recreational cannabis becomes legal in Illinois. Here are five changes that you may need to make to your personnel policies before cannabis becomes legal on January 1: Remove all provisions that discipline an employee for using cannabis outside of work.  Along with the passage of the Cannabis Regulation and Tax Act last June, the Right to Privacy in the Workplace Act was amended to make it illegal for an employer to discipline an employee for using products legal under state law, like cannabis, outside of work. Disciplining an employee for using cannabis outside of work could lead to fines and lawsuits. As we recently discussed , this provision probably does not apply to public safety personnel. So, police, firefighters, and paramedics can be prohibited from using cannabis outside of work and disciplined for doing so. Remove any provisions disciplining an employee or job applicant solely for testing positive for cannabis. Limitations in drug t...

Last week the 3rd District Appellate Court affirmed the practice of a number of municipalities who limit their PSEBA recipients to only their “basic,” or lowest level, health insurance plan. In Esser v. City of Peoria , the plaintiff, a former police officer, had suffered a catastrophic injury as defined under the Public Safety Employee Benefits Act (“PSEBA”). He received a duty disability and applied for and was ultimately found eligible for benefits under PSEBA, which states in pertinent part, that an employer is required to pay the entire premium amount for “basic” health coverage for public safety employees who qualify under the Act. The City had two health insurance plans from which employees could choose – a low deductible, and more expensive plan, and a high deductible, less costly plan. Previous to the plaintiff’s injury and a subsequent application for benefits under the Act, the City had approved an ordinance identifying its high deductible health insurance plan as...

On Thursday, the General Assembly passed a bill amending the Cannabis Regulation and Tax Act, the law legalizing cannabis in Illinois (the full text of the bill is available by clicking here ). Two modifications to the law will affect employers. Firstly, section 10-50(e) of the Act was amended to make it clear that employers cannot be held liable for drug testing employees and disciplining them as a result of these tests. There were no changes to the Right to Privacy in the Workplace Act, so it is still illegal to fire an employee solely for testing positive for cannabis. Here is the modification: (e) Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for: (1) actions  taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discip...

Last week, Americans watched the opening proceedings of the third impeachment inquiry of a President in less than a century. In a couple of months, most of the nation's attention will be on the weekly slog of the Democratic Presidential Primaries for the 2020 General Election. From mass shootings to Brexit , and protests in Hong Kong, the current state of affairs is ripe for all manner of political debate and discussion. What happens, however, when our personal political views enter the workplace? Do employers have a right to regulate speech in the workplace? And, more importantly, what can employers do to ensure political discussion among employees during work hours does not impact workplace cohesion and decorum? Over the next couple of weeks, The Workplace Report with Ancel Glink will explore three distinct areas of free speech in the workplace. Each post will include a summary of the governing law, a brief analysis of the issues, and practical solutions and tools ...

Let’s call it Janus – 1; AFSCME – 1 in the battle over agency fees. Last week the 7th Circuit Court of Appeals affirmed the district court’s grant of summary judgment in Mark Janus’ lawsuit seeking repayment of agency fees withheld from his wages and paid to AFSCME prior to the Supreme Court’s landmark ruling last year overturning its prior rulings that agency fees (fair share) collected from public employees by unions was not unconstitutional. As readers recall, Janus challenged that status quo, successfully arguing to the Supreme Court that requiring him and other public employees to pay agency fees despite their choice against union membership violated their 1st Amendment rights because it, in effect, controlled their speech by making them subsidize political and other public efforts by the union on positions that were contrary to their personal convictions. Having achieved relief from the Court from being forced to pay agency fees, Janus went back for a second bite of ...

I provide advice to some small businesses, and one question I often receive is whether they can classify their workers as independent contractors. We have discussed this topic on this blog before, but I think it is worth discussing it again. And with California requiring ride-sharing services to classify their drivers as employees, this topic is now in the news again. So what is the difference between an independent contractor and employee, and what happens if you classify an employee as an independent contractor? An independent contractor is someone who enters into a contract with an employer to perform some specific task. For example, an independent contractor would be a plumber whom an employer calls periodically to fix problems with sinks or toilets. An employee is someone who works regularly for someone else, under that person or organization’s orders in a continuous relationship. Here are some of the things courts look at to determine whether a worker is an employee: ...

Earlier this week, the DOL proposed a change to the lesser-used FLSA overtime rule that allows employers to pay nonexempt employees who work variable hours each week a set weekly salary from which the regular rate of pay is calculated. Here’s an example: A water operator works 40 hours every other week, but on the opposite weeks is required to go to the water plant on weekends and make various checks on water levels and purity tests. This might mean that the employee works somewhere between four and six hours extra in those opposite weeks. The employee and employer to that the employee will receive a set salary for every week, let’s say $1,000. So, when the employee works 40 hours in a week, the employee’s hourly or regular rate of pay is $25 per hour. When the employee works 44 hours, the hourly or regular rate of pay drops to $22.73 per hour. Since the fluctuating workweek rule allows the employee and employer to agree that the $1,000 is the straight time rate, the employee only ...

The unknown impact of adult-use cannabis and the workplace remains a rich source of discussion among employers and employees alike. Many of our clients ask similar questions in anticipation of the new legislation. Below is a compilation of the most frequently asked questions regarding adult-use cannabis in Illinois after January 1st: Can we still have a zero-tolerance employee drug policy? Yes, insofar as your policy prohibits being under the influence of alcohol or drugs while at work, the legalization of cannabis for adults changes nothing. Since cannabis has behavior-altering effects, you can and should treat it like alcohol and prohibit employees from being under the influence while at work. Should we still test for cannabis during post-employment drug and alcohol screens? Testing decisions are the tricky part for employers. Because cannabis metabolizes slowly and at different rates for different individuals, it may take a month or more for a person to rid their ...

Last Friday, Elizabeth Warren rolled out the details of her healthcare plan. She estimates the plan would create $20.5 trillion dollars in new federal spending over a 10-year period (although rivals like Joe Biden claim it would be much more than that). How does she plan to pay for that? Mainly by increasing taxes on employers. Her plan would impose a new tax on employers equal to 98% of their current health care costs.  Employers would calculate their contribution by averaging healthcare costs per employee over the last three years, multiplying that average by their total number of employees, and paying 98 percent of the total to the government. In effect, Warren’s plan would shift employer healthcare payments from insurance companies to the government. Warren estimates that this tax would raise $8.8 trillion in new revenue over the next ten years. Small businesses that do not offer their employees health insurance (those with fewer than 50 full-time employees are not r...

Most of our clocks automatically reset in the early hours of Sunday when Daylight Savings Time officially ended, but what about your employees who worked that third shift? Do they have to work an hour longer for the same pay because after all, 11:00 pm to 7:00 am is the shift, regardless of whether that totals seven hours (spring forward) or nine hours (when we fall back)? It’s twice a year when we have to adjust payroll for the clock change. I once had a union actually propose that the morning shift (7:00 to 3:00) be required to come in a half hour early at the end of Daylight Savings Time and leave a half hour early at the start of Daylight Savings Time, thereby “splitting the difference” of the hour swing. Ridiculous . Even though we don’t have to remember to turn back many clocks, employers do have to remember that third-shift employees who normally work a full 40-hour workweek actually will earn time and one half on that extra hour that they worked yesterday. No way a...

Let’s say an employer has a policy that it does not pay for time before the employee’s regular workday if the employee arrives to work early because their personal schedule gets them to work ahead of schedule. And let’s say that the policy in question also cautions employees who arrive to work early because of their own personal convenience that they should not begin work until their scheduled time. But, let’s say that out of caution or the employer’s own convenience, it pays employees for their early arrivals because as management has stated on several occasions, it likes the fact that there are employees at work early. If the employer stops paying for this early arrival time, do employees have a claim for unpaid wages? Such was the case recently addressed by the federal court in Illinois for the northern district. Plaintiff, on behalf of a class of employees similarly situated, sued their employer Freudenberg Household Products, LLC claiming that defendant paid employees for ...

If there is one thing this blog harps on, it is keeping good documentation ( for more articles, click  here ,  here ,  here  or even  here ). Annual performance evaluations, consistently documenting violations of the employers’ rules, documenting an employees’ receipt of company policies regarding things like sexual harassment and anti-discrimination, etc., are all essential for employers. Not only does this make for a good workplace, in the event you are sued by one of your former employees this documentation will prove essential to your defense. Probably the most important component of any defense is the employee’s performance evaluations. The employees who sue are generally the ones who are fired. Being able to point to documents showing that their negative performance was the reason they were fired, and not their race, gender, sexual orientation, etc., is crucial in such a lawsuit. So what should a good performance evaluation contain that will hel...

When leadership in the workplace changes, sometimes the culture of the workplace changes as well. When the leadership change includes leaders of a different political affiliation than the previous administration, some employees tend to attribute any negative action towards them as politically motivated. It would be naïve to express that politics never has a role in who is favored or disfavored in the workplace, but it takes more than suspicion or unsupported conclusions to convince a court that an employee’s rights were violated. This week, the 7th Circuit again addressed the issue of what it takes to prove unlawful employment decisions based on political affiliation. In Daza v. Indiana , plaintiff Daza worked for the Indiana Department of Transportation (INDOT) for a number of years allegedly under management by Democratic affiliated administrators. Once a Republican director and department heads, were appointed, he believed that they picked on him, according to him, because of h...

Yesterday, the 11th Circuit Court of Appeals heard arguments on just this issue . The plaintiff, Andrea Gogel, worked for Kia Motor Mfg. in Georgia as an HR manager. In fact, she was a team leader assigned to handle complaints of discrimination and other workplace violations. After coming to believe that she too was a victim of unlawful conduct by the company, she filed a charge with EEOC alleging gender and national origin discrimination. Two other employees filed similar charges after they and Gogel on their behalf received no satisfactory resolution to their complaints. When the company noticed that all three employees were represented by the same lawyer, it discovered that Gogel had provided the lawyer’s name to the other two employees (although she claimed that she had not actually hired that lawyer yet herself), it did what most employers would do, it discharged her. She then amended her charge to include a claim for retaliation, claiming that she had the right to ...

No. Or at least not if they want to keep their jobs. Under federal law, marijuana is still illegal and U.S. Department of Transportation Regulations (USDOT) still require employers to test CDL holders that perform safety-sensitive position jobs (which almost all CDL holders do) for drugs, including marijuana (see  49 CFR Part 40 ). If the CDL holder tests positive for marijuana, he or she must be immediately prohibited from performing the safety-sensitive job. What about the conflict between state and federal law? Illinois law makes it illegal for employers to discipline employees for consuming marijuana outside of work. What if a CDL holder uses cannabis outside of work? The CDL holder must still be removed from the safety-sensitive job. Federal law trumps state law, and the USDOT regulations take precedence over Illinois law. The Supremacy Clause of the Constitution holds that whenever state and federal law conflict, federal law controls. Additionally, USDOT ...

The 7th Circuit Court of Appeals reminded us last week that it is a fine line sometimes between an employee resigning voluntarily or being constructively discharged. In Ulrey v. Reichhart , the plaintiff was an assistant principal in a junior/senior high school. She enjoyed due process protections like many public employees, especially school personnel, and she could only be discharged for good cause after being given an opportunity to be heard. It seems that the plaintiff did not get along well with the defendant, the school district superintendent. Among other concerns, an issue arose regarding whether the plaintiff had completed the necessary coursework to renew her administrator’s license, a requirement for her position. It seemed that a mix up had occurred over this information for the plaintiff as well as other employees of the school district. After the plaintiff either failed or was unable to correct the mix up with respect to her coursework, the defendant superinten...