The Workplace Report with Ancel Glink

Reversing the trend of findings by administrative law judges in the National Labor Relations Board, the Board itself ruled yesterday that misclassifying an employee as an independent contractor alone does not violate the National Labor Relations Act (NLRA). A former employee of Velox Express, Inc., a medical courier service, claimed she was discharged in violation of her Section 7 rights under the NLRA, which protects all non-supervisory employees from adverse action when they engage in concerted activity for their mutual aid or protection in employment. In this instance, worker Jeannie Edge claimed that she was discharged after she complained that she and other workers were misclassified as independent contractors rather than employees. The Board in a 3-1 decision said Velox Express Inc. did not violate the NLRA just by telling its drivers that they were independent contractors, because it was merely expressing a legal opinion and not threatening or coercing them. "An...

Sometimes we say that we’ve "seen it all" in employment problems-only to turn around and discover yet another unique way that employees or employers have gotten themselves in trouble. One thing is certain, we see the following four situations all the time and they muddy the waters for employers almost every time. Inaccurate employee performance evaluations Too often employers are overly cautious in writing performance evaluations and will omit an employee’s deficiencies in an attempt to not “rock the boat” or to not damage the employee’s self-esteem. However, employers are doing themselves a disservice when they do not point out, honestly and with concrete examples, areas for improvement with an employee. First, pointing out deficiencies and providing constructive ways to improve on them can lead to better performance and a better employee for the organization. Second, positive performance reviews for employees that are struggling can be used against an employer in l...

Last Thursday, Governor Pritzker signed into law a bill raising the minimum teacher salary to $40,000. Prior to signing the law, the minimum teacher salary was between $9,000 and $11,000 and had last been raised in 1980. The minimum salary will go into effect gradually, with the $40,000 salary taking effect during the 2023-2024 school year. Next year the minimum salary will be $32,076, the year after that it will be $34,576, and during the 2022-2023 school year, it will rise to $37,076. According to the Illinois State Board of Education, the average salary of a public school teacher in Illinois was $65,721 during the 2017-2018 school year. However, many rural school districts, with much smaller and less affluent tax bases, are forced to pay teachers far less than this. Many of these districts have expressed concerns that the increase in this teacher minimum salary will force them to lay off teachers or raise property taxes. Governor Pritzker has attempted to allay these...

The 7th Circuit Court of Appeals recently reiterated that the ADA-required interactive process is definitely a two-way street. In Graham v. Arctic Zone Iceplex , the plaintiff was hired by the company to be head of maintenance. The company had noted some performance deficiencies and customer complaints after his employment but had not brought them to plaintiff’s attention prior to the time that he suffered a work-related injury which kept him from work for about three months. He returned to work with restrictions, including that he remain seated while working. The company gave him the job of sharpening skates, which company representatives stated that they believed he could perform while seated. After a couple of months, plaintiff transitioned back to full duty and was assigned to the night shift, which the company stated was done in order to address seasonal needs. Plaintiff claimed it was a demotion. A few months after his reassignment, plaintiff had an accident with the Z...

In early October, the Supreme Court will hear two cases that seek to clarify whether Title VII protects against discrimination of employees based on their sexual orientation and gender identity. In R.G. and G. R. Funeral Homes v. EEOC (a case we have reported on as it traveled through the court system), the plaintiff sued her former employer after she notified them that she would begin presenting as a woman upon return from vacation. Prior to the employee's vacation, the employer discharged the worker stating “this is not going to work out” despite the excellent performance record of the employee. The 6th Circuit joined the 7th and 2nd Circuits in holding that Title VII prohibits discrimination based on gender identity. In Zarda v. Altitude Express , the 2nd Circuit Court of Appeals decided in 2018 that Title VII should be interpreted to prohibit sexual orientation discrimination. The plaintiff, now deceased from a skydiving accident, was a sky-diving instructor who told a...

Most employers don’t enjoy firing employees. But getting rid of that toxic employee who causes drama throughout the workplace can feel good. And you wouldn’t be human if you didn’t have at least some desire to tell the world why you are so happy to get rid of that employee. We all need to vent. But it is an urge you should resist, especially if you are a public employer. Bad mouthing a former employee could lead to legal trouble. If a public employer fires an employee and then inflicts reputational harm on that employee so that it makes it difficult for that employee to find another job, the employee could argue that his or her procedural due process rights were violated and sue the employer. The Due Process Clause protects one’s liberty interest to pursue an occupation of his or her choice. Courts have found that when an employer fires an employee and then bad mouths him or her, it can interfere with the employee’s right to pursue his or her occupation of choice. The bad-mo...

For a long time, it was pretty much black letter law that if an employee couldn’t physically report to work then the employee couldn’t perform the essential functions of their job. The 7th Circuit Court of Appeals recently acknowledged that while an employer’s determination that in-person attendance at work weighs heavily in analyzing whether telecommuting is a reasonable accommodation under the ADA, technology, and the ability to work from a variety of locations, must be considered in that decision. In the case of Blinsky v. American Airlines , the plaintiff was a long-time employee of the company, who developed MS. Her position allowed her to work from home as a reasonable accommodation, which the company acknowledged that she did successfully for several years. After a company merger, plaintiff’s workgroup, which had moved to Dallas, was “repurposed,” according to the company. The new focus of the department, now under a new supervisor, required more face to face collaboratio...

Last week the Department of Labor issued three new FLSA opinion letters. One addressed the highly compensated exemption under the FLSA. The letter addressed the exempt status of paralegals in companies, but its application reaches further. Under the FLSA regulations, highly compensated employees who earn a total compensation of $100,000 or more annually (can include bonuses and stipends) can be exempt from overtime eligibility if they meet the following three criteria: The $100,000 total compensation includes at least $455 per week paid on a salary basis; The primary duty of the employee is office or non-manual work; The employee performs at least one of the exempt duties of an executive, administrative or professional exempt employee. The opinion letter stressed that while the employee must perform at least one of the duties of the three “white collar” exemptions, that duty does not need to be a primary duty of the employee. So, for instance, if an employee meets the co...

It is common to find “probationary periods” in personnel policies. The probationary period generally applies to new hires and is usually a training period where the new hire will be supervised more closely and not permitted to act with the same autonomy as a regular employee. It tends to last for a few weeks or months, after which the employee can start to accrue benefits like vacation and sick leave. What many public sector employers fail to realize is that these probationary periods could be setting them up for future legal trouble. A number of courts in Illinois and other states have ruled that completing a probationary period creates an expectation of continued employment , which means that the employee is entitled to a hearing before he or she can be fired or perhaps can only be fired for good cause. The courts have held that the expectation of continued employment is a property right which the government cannot deprive without due process of the law, which is what necessit...

Employers know that eligible employees are entitled to use intermittent FMLA leave to take their children with serious medical conditions to doctor, therapy and other appointments. Employees are eligible when they meet requirements for FMLA and provide appropriate health care certifications documenting the qualifying medical conditions of their child or children. Last week, the Department of Labor issued an opinion letter expanding FMLA protections to include some school meetings if the parent already qualifies for FMLA leave based on their child’s medical condition. Under FMLA, an eligible employee of a covered employer may take up to twelve weeks of job-protected, unpaid FMLA leave per year “to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.” Care for a family member includes “both physical and psychological care” and “mak[ing] arrangements for changes in care...” In further defin...

As the prevalence of "active shooter" situations increases in public and private workplaces, it is wise for employers to adopt safety and training procedures in case these situations arise. Below are general tips and resources that an employer-regardless of size-may find useful when addressing safety concerns regarding active shooters. These tools can be incorporated through various avenues of training or within an employee handbook. DO's and DON'Ts Below are tips to consider when devising an active shooter preparedness plan. DO: consider training employees on emergency preparedness during active shooter situations after implementing a plan. At the very least, grant employees time in their workday to properly read a safety plan and allow an open-door policy for questions regarding safety and emergency preparedness. DON'T: scare employees with sensational rhetoric on an evolving societal issue. Although this type of behavior should concern man...

Most employers have policies permitting them to conduct searches of employees and their property. And, if done right, those policies are necessary and useful. If you suspect an employee of committing theft or coming to work under the influence of drugs or alcohol, the best way to confirm this suspicion often is to conduct a search. However, public sector employers can quickly run into problems with such policies if they are not devised with knowledge of the law. Unlike private-sector employers, government employers are bound by the Constitution. That includes the Fourth Amendment with its prohibitions against searches and seizures without a warrant. With that said, public sector employers have much more leeway when conducting employee searches than, say, the police when they attempt to search someone’s home. Employers in the public sector can conduct searches of an employee and his or her workspace if that employee does not have a reasonable expectation of privacy in that wo...

On Wednesday, Governor J.B. Pritzker signed into law one of the broadest protections for employees in the State of Illinois to date regarding equal pay. The No Salary History law , which goes into effect 60-days after the Governor’s signature, is a series of amended changes to the Illinois Equal Pay Act . Prohibition on Wage or Salary Inquiry The changes prohibit employers from including a salary history question on job applications. The amendment renders it unlawful for an employer to (1) screen job applicants-satisfying a minimum or maximum hiring criteria-based on their wage or salary history at prior jobs; (2) request or require wage or salary history as a condition for consideration of employment or in the interview process; or (3) request or require wage or salary history as a condition of employment. Exceptions Exceptions to inquiries regarding wage or salary include information subject to a Freedom of Information Act (FOIA) request; is a matter of public record;...