The Workplace Report with Ancel Glink

Flexible work hours and work spaces is a clear employment trend. Not only can it save money for the employer (less work space to provide) but it absolutely assists in recruiting and retaining valuable employees.  Telecommuting can bring its own set of problems though, as many employers know. One of them is ensuring a safe work space for the employee when they are working remotely. Take the case of Mary Sandberg v. J C Penney . Ms. Sandberg was a J.C. Penney employee in Oregon, working as a designer for the company. While working at home one day she walked to her garage to retrieve some fabric samples and tripped over her dog. She broke her wrist in the resulting fall. Claiming that her injury arose out of and in the course of employment, Ms. Sandberg filed a claim for worker’s compensation and ultimately received an award for her injury. Despite the fact that she was in her own house and tripped over her own dog, it was determined that her injury did occur during the course of...

The long-awaited changes to the rules regarding overtime pay will likely take effect later this year, so employers may want to start budgeting for these changes now. The Department of Labor has announced that it will set forth proposed changes to the rules regarding overtime pay in March 2019. While the rules can take effect as early as 30 days after the Department proposes them, usually the delay is between 3 to 6 months. So, I would expect the new overtime rule to be in place by the summer or fall of this year. The Fair Labor Standards Act currently requires that employees making less than $23,660 ($455 per week), to be paid 1.5 times their standard hourly wage for each hour worked over 40 in a week. Back in 2016 , the Obama Administration’s Department of Labor proposed increasing the salary for which an employee would be entitled to overtime to $47,476 annually or $913 per week. The rule was set to take effect in December 2016 until a court blocked its implementation due t...

As kids, snow days were an unexpected Get Out of Jail Free card. It’s pretty much the same for employees. When extreme weather or other potentially dangerous situations call for an employer to close the workplace or require only essential personnel to report, it’s reminiscent of a snow day when employees were kids-in part because employees believe they deserve pay for these days. But do employers have to pay their employees if they close the workplace? Only under the following circumstances: If the employer has guarantees a certain number of hours of work to employees. This kind of agreement is usually found in a collective bargaining agreement or employment contract. If the employer has agreed to a certain number of hours of work each week, then the employer probably has to pay the employees when they’re told not to report. Otherwise, employees only are entitled to pay for the time that they actually work. Exempt employees. A deduction in pay for “snow days” for exemp...

Last month, the 8th Circuit Court of Appeals held that an employer who fired an employee for refusing to get the measles vaccination did not violate the law. The court held that the employee’s refusal to get vaccinated was not a disability that fell within the protection of the Americans with Disabilities Act (ADA), and therefore firing the employee was not a violation of the ADA. The employee was a health-care aid who cared for the disabled. Because of her close contact with many patients, her employer required her to get all of the standards vaccinations. She refused, stating that she had “many allergies and chemical sensitivities” to the measles vaccine. Her employer fired her, and she sued, claiming that the employer discriminated against her for exercising her rights under the ADA and Minnesota law. The judge tossed the lawsuit out of court, holding that employees who fail to get vaccinated are not considered disabled under the ADA. Nor did the employee show that she su...

Last month, a district court in Texas issued a significant ruling in Texas v. United States declaring the Affordable Care Act (ACA), aka Obamacare, unconstitutional. The court held that since the individual mandate, which required people to either buy health insurance or pay a tax penalty, was repealed , the ACA was no longer a tax, and therefore Congress had no power to pass such a law, as it no longer fell under Congress’s taxing power. So, what does this mean for employers? First, the ACA does still remain in effect. The ruling is being appealed, and the ACA will remain in place during the pendency of the appeal. The Trump Administration has said that it will continue to administer and enforce the ACA as it had before the court issued its decision. With the ACA still in place, employers must continue to comply with the law , with those employers having more than 50 employees required to continue to provide health insurance benefits to their employees who work 30 or more h...

Recently a Connecticut district court indicated that unless the parties settled the case in question, it might find that plaintiff was entitled to FMLA job protections even though she was not eligible for FMLA. Plaintiff had worked for employer/defendant for just under one year when she was advised by her doctor to have Achilles tendon surgery to address hip and knee pain. She advised HR of her intent to take FMLA once she was eligible for the surgery. An HR representative directed her to begin her leave immediately “because she was a liability” even though she was not working under any restrictions. She was also told not to worry about her FMLA being approved and that her job would be waiting for her. Based on those assertions, plaintiff scheduled and underwent surgery eight days before her one year anniversary with the company, although she had initially intended to schedule her surgery after her one year anniversary. While she was on leave the company sent her a letter that she was...

About 100,000 past and current international au pairs could share in the $65.5 million settlement fund on the claim that the au pair companies were “price fixing” or keeping the hourly rate for these individuals artificially low. International au pairs are generally young people who come to the U.S. under a special government visa to provide childcare to families and experience the culture in America. The problem, according to the suit, is that a number of au pair sponsor organizations “conspired” to maintain a below minimum wage rate of pay of $4.35 an hour and failed to inform the au pairs of their ability to negotiate a higher pay rate. The lower minimum wage is allowed because au pairs also receive room and board as well as often receive other economic perks from their host families. The settlement, which came just a month before trial was to begin, includes a commitment from the sponsor organizations to affirmatively notify au pairs of their ability to negotiate their ho...

While various state wage laws and contract terms may regulate whether an employee is paid for all of their time worked, the Fair Labor Standards Act specifically establishes and enforces minimum wage and overtime obligations. The line between the two can become blurry when an employee claims that they were not paid at all for specific work time. So, does an Illinois employee who claims that they worked 30 hours in a week but were only paid for 28 of those hours have an FLSA claim because they were not paid at least minimum wage for two hours of work in that week? Recently, the 7th Circuit Court of Appeals held that the proper test for a minimum wage claim is not whether the employer paid the employee the usual rate of pay or even the agreed upon rate of pay for all hours worked in a week, but rather whether the average rate of pay for all hours worked meets or exceeds the minimum wage rate. In Hirst v. Skywest, Inc . the plaintiffs were a putative class of flight attendants. They ...

Last month the Equal Employment Opportunity Commission (EEOC) rescinded wellness incentive program rules under the that the Obama-era EEOC passed in 2016. The rescission of these rules took effect on January 1. Employee wellness plans are programs intended to promote health and fitness to employees, with employees obtaining benefits, like financial compensation, for hitting certain health and fitness targets. For example, wellness programs might offer free gym membership or discounts on insurance premiums if an employee stops smoking or enrolls in a weight loss program or does preventive health screenings. Before May 2016, wellness plans were not regulated. That month, the EEOC passed regulations to make them compliant with the Americans with Disabilities Act and the Genetic Information Nondisclosure Act , requiring the programs to be available to all employees and to require the information collected from these plans to remain confidential. Additionally, enrollment in these...

Happy New Year to our readers. The new year comes with new employment laws of which employers need to be aware. Here are the highlights: Illinois Service Member Employment and Reemployment Rights Act (ISERRA) -  The ISERRA incorporates the provisions of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), thereby expanding the rights of employees who are members of the military in Illinois. Under this new law, employees who are serve in the military are not only entitled to leaves of absence for military service with the right of reinstatement and protection against workplace discrimination based of that service, but are also entitled to the following: Employees on military leave must be granted at least an average performance evaluation rating based on the three years preceding the military leave; Salary continuation during annual training service for up to 30 non-consecutive days per calendar year; Continued contributions to the employee’s gr...