The Workplace Report with Ancel Glink

Let’s say your payroll department inadvertently makes a mistake and overpays an employee by direct deposit, $1,000. Your payroll administrator discovers the mistake the next day because the employee is gleefully telling all of his co-workers about it. Can you immediately deduct the amount from the employee’s bank account? Deductions from employee wages in Illinois is covered by the Illinois Wage Payment and Collection Act , which is enforced by the Illinois Department of Labor (IDOL) and state courts. An employer’s recourse, when it has overpaid an employee or when the employee owes the employer money for any reason, is determined by two things: timing (isn’t almost everything a matter of timing?) and whether the employee agrees that an overpayment has been made or a debt to the employer is owed. The answer to the original question of whether the employer can unilaterally go back into the employee’s bank account and reverse part or all of a direct deposit to correct a disputed...

On Wednesday we reported on the issuance of the DOL’s final rule on FLSA overtime and exemptions. The major amendment to the current rule, of course, is the increase in the salary threshold from $455 a week ($23,660 annually) to $684 a week ($35,568 annually) without a change to the duties test for white-collar exemptions. Other amendments to the rule include the following: Raising the total annual compensation requirement for “highly compensated employees” from the currently enforced level of $100,000 per year to $107,432 per year; Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices; and Revising the special salary levels for workers in U.S. territories and the motion picture industry. Employees who are paid $107,432 as a base salary or up to 10% of that amount paid as nondiscretionary bonuses or incentive, meet t...

Yesterday the Department of Labor issued its new rule on FLSA overtime, raising the threshold for exempt status to $35,568, or $684 a week. This new overtime rule takes effect on January 1, 2020. Under the current overtime rule, in order to designate an employee as exempt using one of the three “white collar” exemptions of executive, administrative or professional, an employee must earn at least $455 a week ($23,660 annually) and meet the duties test of at least one of the exempt categories. The duties test for each of the white-collar exemptions is as follows: Executive exemption. The employee's primary duty must be managing the enterprise or a department or subdivision of the enterprise. The employee must customarily and regularly direct the work of at least two employees and have the authority to hire or fire workers (or the employee's suggestions and recommendations as to hiring, firing or changing the status of other employees must be given particular weight). ...

One annoying task that employers have had to do over the past few years is to submit pay data to the EEOC. Thankfully, it looks like this is the last year they will have to do that. A couple of weeks ago the Equal Employment Opportunity Commission announced that it will no longer require employers to submit EEO-2 pay data. In 2016, the EEOC implemented a rule that required all private-sector employers with 100 or more employees to submit to the Agency a report describing the amount of money each employee is paid along with the number of hours the employee worked, the employee’s job category, and the employee’s ethnicity and gender. Providing this information to the EEOC has been a huge undertaking. The EEOC’s Office of Enterprise Data and Analytics estimated the cost to employers of providing this data to be $614 million for the 2017 data and $622 million for the 2018 data. The cruel irony is that the Trump Administration’s EEOC didn’t even want to collect it, but was fo...

Joining a number of other public and private litigants, the state of Alaska recently filed suit against the Alaska State Employee Association (ASEA) on behalf of workers who object to paying dues and seek to revoke their union membership. The ASEA, which is an affiliate of AFSCME, restricts withdrawal by a member to the 30 days surrounding the anniversary of signing their dues deduction card. The Alaska Attorney General argues that while Janus dealt specifically with workers who are not union members, the court made clear in its opinion that no public employee can be forced to subsidize union activity. The union’s current rule that prohibits employees from withdrawing from union membership at any time, according to the lawsuit, forces those employees to support the union against their wishes, until the window of time occurs in which they can withdraw as a union member. Other courts have held that the Janus opinion only addressed the rights of nonunion public employees an...

Last month Governor Pritzker signed into law S.B. 75, the Workplace Transparency Act. The Act, aimed at addressing harassment in the workplace, imposes many new obligations on employers. Here are some of them: Mandatory Sexual Harassment Training. It is now mandatory for all employers, no matter their size, to provide sexual harassment training to their employees at least once a year. Failure to conduct this annual sexual harassment training could result in a $500 fine to businesses with four employees or fewer for the first offense, $1,000 for the second offense, and $3,000 for each offense after that. For businesses with more than four employees the fines double. The training must include a summary of state and federal laws prohibiting sexual harassment along with the remedies available to sexual harassment victims. It must also explain what the employer will do to investigate and prevent sexual harassment. An explanation of sexual harassment and examples of what consti...

Let’s say that you have an employee who is on an FMLA leave of absence but is failing to pay their employee share of the health insurance premium. Failure to pay the health insurance premium, or the employee’s portion of such, can result in discontinuation of coverage for the employee, but if the employee loses coverage due to non-payment of their share of the premium, are they then entitled to continue coverage under COBRA? Last week the 6th Circuit Court of Appeals considered this question in the case of Morehouse v. Steak N Shake . In that case, the plaintiff suffered a work-related injury and was placed on FMLA and was receiving workers compensation. Her health insurance continued and the parties agreed that the employer would withhold the employee’s premium contribution from her worker’s comp payments. This worked fine until the worker’s comp carrier discontinued benefits and the employee failed to pay her share of the premium. Eventually, the employer canceled her health i...

As most public employers know, the Fair Labor Standards Act , which requires employers to pay time and one-half overtime for work over 40 hours in a week, also contains a partial exemption for police and fire personnel. Rather than determining overtime based on the hours worked in a week, the Act allows employers to calculate overtime based on as many as 28 consecutive days. The exemption, often referred to as the 7(k) exemption because it is found in Section 207(k) of the Act, provides that fire personnel are entitled to an overtime rate of pay after working 212 hours in a 28-day period or the same ratio for fewer days and police personnel earn overtime after working 171 hours in a 28-day period or the same ratio for fewer days. But what does an employer do if the worker is both a police officer and a firefighter? It happens in some municipalities that a full-time police officer might also work as a part-time firefighter or the other way around. Or, it might be that the munic...

Starting on September 29th, employers will not be allowed to ask a job applicant about his or her salary history. This is when an amendment to the Illinois Equal Pay Act signed by Governor Pritzker on July 31, 2019 , goes into effect. The Equal Pay Act prohibits employers from paying unequal wages to men and women who perform similar jobs. The amendments that Governor Pritzker signed into law now prohibit employers from doing the following four things: Screening job applicants based on their salary history; Requiring that an applicant’s prior salary satisfy minimum or maximum criteria; Requesting the applicant to disclose his or her previous salaries; Seeking an applicant’s salary history from a current or former employer. The new law does not prohibit a job applicant’s previous employer from providing salary information to the applicant’s prospective employer. Nor does it prohibit an applicant from disclosing his or her previous salaries. If the applicant does thi...

In a case that has wound its way through the Michigan court system for several years, the state supreme court there recently ruled that retired unionized county employees could not rely on the terms of the collective bargaining agreement to claim lifetime health insurance benefits. Plaintiffs were approximately 1600 retirees who were previously unionized employees for the county under various CBAs dating back to 1989. They sued the county after it reduced their healthcare benefits in 2009 and 2010, arguing that the CBAs, which were generally three-year contracts, contained provisions expressly granting a right to lifetime and unalterable retirement healthcare benefits. The parties have taken a roller coaster ride through the court system for almost a decade, with the trial court apparently attempting to split the baby by concluding that retirees were entitled to lifetime healthcare benefits, but the county could make reasonable modifications to those benefits. The Court of A...

On August 21, 2019, Gov. Pritzker signed HB 252 into law, expanding coverage under the Illinois Human Rights Act to include small businesses. The new legislation, P.A. 101-0430 , newly defines “employers” covered by the Act to be those with “one or more employees...within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation [under the Act].” It becomes effective on July 1, 2020. Currently, the Act only covers employers with 15 or more employees except for claims of sexual harassment, pregnancy or disability discrimination, which already cover employers with even one employee. The new definition of "employer" means that small businesses in Illinois may be subject to race, national origin, gender, sexual orientation, religion and age discrimination claims and other claims from which they currently are exempt. The amended Act will also cover multistate businesses that employ one or more Illinois workers. Smaller ...

As most employers know, one way that public-sector unions are shoring up membership in the wake of the Janus decision is to restrict members’ ability to withdraw from the union. Many if not all of the public employee unions have adopted membership rules that allow an employee/member to withdraw from the union during only a short window of time each year, generally around the anniversary of their signing a dues deduction card. Often this window of opportunity is not only short but so difficult to comply with that most employees either are unaware of the window or unable to comply with the rules. For instance, one public-sector union in Illinois was requiring members who wish to withdraw from the union to serve their notice not only within a short period of time around the anniversary of joining, but also were required to serve the notice in person at the union’s offices. Unfortunately for the employee/member, the offices had very limited hours, making it very difficult for emplo...

In most personnel policies and employee handbooks, you will find something forbidding employees from coming to work under the influence of drugs and/or alcohol. But what often does not follow is an actual policy to determine whether an employee is under the influence. With no formal policy for determining whether an employee is under the influence, it is either functionally impossible for the employer to enforce its drug and alcohol-free workplace policy or the enforcement will be haphazard and arbitrary, which could leave an employer open to legal liability. So, I encourage employers to add a drug and alcohol testing policy to personnel manuals and employee handbooks. But what should the policy contain? I suggest implementing a policy that has four parts: 1) a system for determining whether the employee is under the influence; 2) a mechanism for testing the employee to determine whether he or she is under the influence; 3) disciplinary action for being under the influence; 4)...