The Workplace Report with Ancel Glink

“No one keeps track of vacation time and sick days anymore,” one of my friends in HR recently told me. “Everyone gives unlimited PTO these days.” And she’s right—unlimited PTO has become far more common in the last decade, with many employers with younger workforces, like those in tech and sales, providing unlimited PTO. I have heard unlimited PTO described as the “wave of the future” on more than one occasion. The logic behind unlimited PTO makes sense. Treat everyone like adults and let them take the time off that they need. As long as they get their work done, who cares when or where they work? Well, the government and employment lawyers do, making life needlessly difficult for employers like usual. Unlimited PTO may create a host of legal problems for employers. The first problem with unlimited PTO is the Illinois Wage Payment and Collection Act , which requires employers to pay employees for any unused vacation time when they leave. If vacation time is unlimited, what happe...

The way that America does business now is different than before. Where most employers hired full and part time workers to do their work, the trend now for employers is to outsource or use a mix of employees and independent contractors, depending on the task and the expertise involved. When a workplace has such a mix, the application of labor and employment laws can get complicated. Such was the case decided by a Tennessee district court when sorting through the claims of a discharged employee who sued her former employer for gender discrimination, sexual harassment, retaliation. The former employee, a telemarketing assistant, claimed that she was the victim of unwanted attention, comments and touching from another staff member, a trainer in her department. She alleged that although she attempted to address her complaints to him directly, she ultimately complained to the company president after she was written up and demoted. She was fired the same day that she complained of the ...

Last year in Janus v. AFSCME , the U.S. Supreme Court ruled that unions representing public sector employees cannot force employees who decline union membership to pay fair share fees. Last week the Collective Bargaining Freedom Act became effective in Illinois, securing those rights for private sector unions. The Act prohibits local governmental units from declaring right to work zones. Those zones would extend the Janus ruling to all employees within the geographic area of the declared right to work zone. Attempts to prohibit the collection of fair share fees for all workers in the private sector who declined union membership within the local governmental boundaries have been struck down by the 7th Circuit Court of Appeals but the issue case has been appealed to the U. S. Supreme Court. Stating that the Collective Bargaining Freedom Act is just a reiteration of state law when he signed the Act into law earlier this month, Gov. Pritzer said “Right to work has always meant right...

Most separation agreements say that in exchange for receiving severance pay or some other benefit, the departing employee will agree not to sue the employer. The employee is not allowed to bring a lawsuit claiming the employee was fired because of his or her race, gender, sexual orientation, age, etc. As I recently discussed on our podcast , there has been an uptick in lawsuits filed under the Age Discrimination in Employment Act (ADEA), and in order for an employer to protect itself from a lawsuit brought under that Act, it must comply with the Older Workers’ Benefit Protection Act (29 U.S.C. § 626). The Older Workers’ Benefit Protection Act is the federal law that requires waivers of federal age discrimination claims (i.e. lawsuits brought under the ADEA) to be “knowing and voluntary.” For the waiver to be “knowing and voluntary,” the employer must tell employees who are 40 and older that: They have 21 days to consider the agreement (or 45 days in the case of a “group ...

Believe it or not, summer is almost here. Certainly, seasonal hiring is in full swing for many employers as students hurry to line up their summer jobs. Here are five reminders for employers as they hire on their summer staff: Overtime It used to be that the FLSA and state wage and hour laws allowed employers who primarily provide recreation or amusement services were exempt from overtime obligations for seasonal staff. This meant that miniature golf parks, park districts and the like could hire summer staff at or around minimum wage to fill their extra needs without worry about overtime costs. Believe it or not, many employers remain unaware that in Illinois, even  seasonal employees are entitled to time and one-half pay for all hours worked over 40 in a workweek . Dress Code Let’s face it, many students have no idea how to dress for work. Add to that the fact that many summer jobs are outdoors or involve some sort of recreational activity, which call for more casual ...

Yes, at least in Illinois . Illinois law permits an employee who is receiving weekly or monthly severance payments to also collect unemployment benefits. The Illinois Department of Employment Security (IDES) considers severance pay to be money that an employee received for work performed during the time of the employment. Therefore, the IDES does not consider it income for work currently performed, and therefore it will not impact an employee’s ability to receive unemployment benefits. IDES regulations (56 Ill. Adm. Code 2920.45) state: a) Amounts paid or payable to an individual for past services rendered by the individual to an employer or amounts paid or payable to an individual for pension or seniority rights lost upon separation or layoff shall be considered severance pay. Such pay shall not be considered wages payable or attributable with respect to the period subsequent to the individual's separation or layoff. Amounts paid or payable to the individual as sever...

For a while under the Obama Administration, it seemed as if the NLRB characterized every gripe between co-workers as “concerted activity” and therefore protected by the National Labor Relations Act the NLRB. The pendulum may be swinging the other way. Two mortgage bankers for Quicken Loans, Laff and Woods, met as they were entering a restroom that was open to the public and customers. While they were both in the restroom, one employee, Woods, began complaining to Laff about a client (who was calling him instead of a more appropriate person at the company), while using the “F” word. The second employee, Laff, responded that he understood why Woods was frustrated. A supervisor overheard this conversation and saw Laff after he exited his stall. In response to what he overheard, the supervisor forwarded an email to all employees reminding them of proper employee conduct in public areas, specifically mentioning that employees should not swear about clients. Probably not realizing...

Last fall, I wrote about the Illinois mandatory retirement program , which was set to take effect on November 1, 2018. Only large employers, those with more than 500 employees, were required to participate in it, and there was a real question as to whether it would remain in place, as then-Governor Rauner issued an amendatory veto that would have made the program optional, not mandatory. That uncertainty has since been resolved, as the Illinois legislature last month chose not to act on the amendment, essentially overriding the amendatory veto. Governor Pritzker has shown no signs of wanting to repeal the law, so I expect it to be here to stay. And later this year it will start applying to smaller employers, so if you are one of these smaller employers, you should start preparing to comply with the program now. The program is officially known as the Illinois Secure Choice Savings Program Act , and it requires private sector employers who have more than 25 employees and who h...

For years, the collective bargaining agreement between the FOP and the City of Chicago included a provision that record of discipline for police officers would be destroyed after five years. This requirement became the subject of grievances when back in 2011 and 2012 the FOP learned that the City was retaining complaint register files more than five years old. Complaint register files are the files produced to other City departments or other agencies related to allegations of police misconduct . Despite the initiation in late 2015, of a Department of Justice investigation into police misconduct which included a request that the City turn over complaint files, an arbitrator ruled in favor of the FOP and ordered the City to destroy files that were more than five years old. Shortly after the award issued, a U. S. attorney sent the City a letter ordering that it preserve all records of complaints or discipline. The circuit court granted the City’s petition to vacate the arbitrat...

A couple of weeks ago the Department of Labor issued a few new opinion letters, and a couple of them I found interesting. The takeaway from both: being too generous with your employees might actually backfire and result in a violation of the law. One of the letters discussed the Family and Medical Leave Act , while the other discussed employer-coordinated volunteer work . Don’t Provide Extra Unpaid Leave According to the DOL , providing employees with more leave than the 12 weeks required by the FMLA is a violation of that law. This is true even if the delay in designating the leave is to allow the employee to exhaust sick or vacation days. As we have explained , FMLA-leave may be taken concurrently with other paid leave, but this is the first time I have heard that employers must require FMLA leave to be taken concurrently with other paid leave. I am not sure a court will agree with the Department of Labor on this one, but it is nonetheless worth keeping this in mind when dra...