The Workplace Report with Ancel Glink

As most employers know, the Department of Labor has taken another stab at proposing a new rule raising the threshold salary for white collar exemptions. Under the proposed rule, the minimum salary will increase from $23,660 to $35,308. Equally important to note is that the proposed rule also clarifies payments to be included when calculating the regular rate of pay. As readers know, the FLSA requires calculation of overtime as one and one-half of the employee’s regular rate of pay. Under the proposed rule, employers may exclude the following from an employee's regular rate of pay: The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;  Payments for unused paid leave, including paid sick leave;  Reimbursed expenses, even if not incurred solely for the employer's benefit;  Reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Fede...

If there is one thing that we have stressed on this blog, it is to keep good employee records . A proper employee record retention program is essential to defending lawsuits or surviving an investigation. Moreover, various federal and state laws require that employers keep certain records and allow employees to review them, even after the employee has left the company. Because good recordkeeping is so important, I thought that it might be useful to provide some suggestions about how to do it: Keep a Detailed Personnel File You should create a personnel file for each employee on the day of his or her hire and this file should contain important job-related documents like: The employee’s application and resume The employment contract Non-compete, non-solicitation, and non-disclosure agreements IRS Form W-4 (i.e. the employee’s withholding allowance sheet) Employee benefits designations Emergency contact forms Performance evaluations Awards, disciplinary actions, or c...

Do you ever wonder if those employees who live in and operate lighthouses have to pay taxes on the value of the living space? Or, on a more practical note, let’s say that your business has a residence attached to it. Many local governmental facilities, especially park districts, have residences on their premises. Some in fact are very nice houses. It can also seem helpful to the employer to have someone live on the premises, to “keep an eye on things,” as well as helpful to an employee who may need a place to live, to have that employee live in the residence. The question is whether the value of living in the residence is taxable income attributed to the employee. Generally, rent-free housing is taxable, but the IRS has certain narrow exceptions. One of those exceptions may fit some employers’ situations, especially local government employers. No cost housing provided by the employer is not taxable income if it is provided for the convenience of the employer. There are 3 standar...

Even when conditions of a training are unforeseen, like the presence of snow and ice, an Illinois Appellate Court found that an injured police officer was not entitled to PSEBA benefits as a result of injuries sustained during that training. In 2015, a Peoria police officer was participating in riot training. The officers were told to react as if an emergency situation actually existed. As the simulation began, the plaintiff in this case almost immediately slipped on snow and ice and fell to the ground, hitting her head. Rather than obtaining medical attention at that time, plaintiff said she continued with the training because they were instructed to treat the simulation as a “real life” emergency. She sought medical treatment the next day, but was never able to return to full duty. Following an administrative hearing held pursuant to City code, the hearing officer issued a decision denying plaintiff PSEBA benefits. Although the parties conceded that plaintiff had suffered a ca...

Many employees may not realize that they can take loans from the money that they have saved in their 401(k) plans. While doing so carries some risk, as failing to pay back the money will trigger significant tax penalties, it does provide employees with the ability to quickly borrow money interest free regardless of their credit score. 401(k) owners are allowed to borrow up to 50% of the vested balance in their 401(k). The vested balance is the amount of money in the 401(k) that an employee would have access to if he or she were to leave the company immediately. Many companies require employees to fulfill certain conditions, like working for a certain amount of time, before they will be entitled to receive all of the money that the company has set aside for them. The maximum amount of money that can be borrowed in a 401(k) loan is $50,000. 401(k) owners who take a loan have five years to repay it. Payments must be made at least quarterly. Owners actually have to pay ...

Differences continue to exist among federal courts as to whether use of salary history is a gender-neutral basis to justify salary differences between male and females doing the same job. The federal Equal Pay Act prohibits unequal pay for the same work based on sex. Many argue, and some courts agree, that because women continue to earn less than men for the same work (the gender gap), to allow employers to base wages on the candidate’s salary history only perpetuates the sex-based pay disparity and should not be lawful. The most recent notable case supporting the argument against use of wage history came out of California. In Rizo v. Yovino , which has been the subject of a few posts here , the court of appeals ultimately ruled that the school district who hired plaintiff in that case violated the Equal Pay Act when it paid her as a teacher significantly less for the same work than male teachers because the school district based pay on salary history.  The U.S. Supreme Cour...

Complying with the ADA can be complicated. While most employers know that they must provide a reasonable accommodation to a disabled employee to allow that worker to perform the essential functions of their positions, our clients sometimes ask us for assistance in determining the actual essential functions of a job. Are they just what the employer labels as essential functions in a job description? And, as so often is the case, what if the job description is not completely up to date and does not identify duties as essential that the employer believes are so? Earlier this week, the 7th Circuit Court of Appeals reiterated the test that courts in this jurisdiction should use to determine what job duties are essential functions. In the case of Papenfuss v. Butitta Bros. Auto, Inc , the plaintiff had worked for the auto repair company for a few years when he began suffering from seizures. His doctor restricted him from driving for an indefinite period of time. Upon hire, plaintiff was...

An Atlantic City, New Jersey firefighter filed suit last week for religious discrimination after he was removed from service over his beard. The firefighter, who alleges that his job is to ensure that the masks that firefighters wear when fighting fires are in good working order, ironically was removed from service allegedly because his beard could compromise the seal of the masks which are designed to supply oxygen if needed and to prevent firefighters from breathing smoke while putting out a fire. Firefighter Alexander Smith claims that he recently became a born again Christian and symbolic of his faith he began growing a beard late last year. The Department has a policy prohibiting beards and goatees because they interfere with the seal on the masks that firefighters wear when engaging in fire suppression. In early January of this year, Smith asked for a religious accommodation allowing him to maintain a beard. He claims that he does not actually engage in fire suppression,...

Employers might want to check out sexual harassment prevention videos that were recently released by the State of New York. You can check out the videos by clicking here and here . Also available are the slides used in the videos along with the video’s transcript and case studies , as well as a webinar that discusses recent changes in the State’s employment laws. The information contained in these materials is applicable to employers in Illinois and other states, so if employers are looking to conduct sexual harassment prevention training in house, these materials are a good place to start. These materials have been released as part of a sweeping series of changes to New York’s laws governing sexual harassment in the workplace. Starting last October, New York employers were required to adopt written sexual harassment prevention policies and undertake annual workplace sexual harassment training. Ancel Glink provides sexual harassment training, so if you are interested in ...

Our clients often lament that they worry that every rude or wrongful comment made to an employee is a potential lawsuit. We like to remind them that the workplace is made up of people and sometimes people don’t behave as well as they should. In fact, sometimes people in the workplace say or do offensive things, either on purpose or unintentionally. The question we are often asked is when does offensive conduct or words become actionable. Courts generally hold that behavior (words or deeds) must be “ severe or pervasive ” in order to be the subject of a Title VII claim by an employee. But what does that mean? Of course every case is different and courts decide each case based on its facts, but the standards remain the same, the problem is how to apply them. The 7th Circuit addressed the issue last week in Gates V. Chicago Board of Education . In Gates , the plaintiff had worked for the Chicago Board of Education as a building engineer. Gates is African American and over 4...

The Department of Labor issued its much anticipated proposed overtime regulations yesterday, after about a year and a half of anticipation from employers and workers alike. Yesterday the Department announced its proposed rule to increase the threshold salary for exempt status eligibility from $455 per week ($23,660 annually), set in 2004, to $679 per week (equivalent to $35,308 per year). As employers are aware, the so called “white collar exemptions” for overtime provides that executive, professional and administrative employees are exempt from overtime provisions if they meet a two-part test. The first part is often referred to as the salary basis test, which requires that employees are paid on a salary basis at a minimum threshold. It is the salary threshold that the DOL proposes to increase. The second part of the white-collar exemption test is that eligible employees’ primary duties meet the DOL’s definition of exempt in at least one of the three categories of professi...

Employers in Illinois have been hit with a wave of class action lawsuits brought pursuant to the Illinois Biometric Privacy Information Act (BIPA) over the past three years. The suits accuse employers of not complying with the requirements set forth in the BIPA for protecting employee biometric information. These suits have sought large amounts from employers for failing to comply with this law, so employers should be on guard anytime that they take an employee’s biometric information. Biometrics is the measurement and statistical analysis of an individual’s physical and behavioral characteristics and is used in the workplace for things like fingerprint scanners, retina scanners, voice recognition, typing rhythm, and gait. Biometrics are used for time management purposes, requiring employees to scan their fingerprints when they sign in and leave work. They also are used in security systems, with some high security employment facilities using retina scanners to verify an employ...

Last week the U.S. Supreme Court struck the potentially important equal pay case of Yovino v. Rizo from its docket, sending it back to the 9th Circuit Court of Appeals, leaving a split among the circuits as to whether employers violate the Equal Pay Act when they base pay decisions on salary history of the applicants. We have reported on this case in the past here . The plaintiff in this lawsuit is female and learned that she was making less money at her job with Fresno County Schools than her male counterparts doing the exact same job, despite her having greater educational background than some of her male counterparts. In fact, she was being paid about $13,000 a year less than even the male employee who was less senior to her. She sued her employer under the Equal Pay Act , who responded that they set her salary, as well as her male colleague’s based in large part on their salary history, ensuring that their starting pay was about 5% higher than the salary in the job they ...