The Workplace Report with Ancel Glink

Let’s say an employer has a policy that it does not pay for time before the employee’s regular workday if the employee arrives to work early because their personal schedule gets them to work ahead of schedule. And let’s say that the policy in question also cautions employees who arrive to work early because of their own personal convenience that they should not begin work until their scheduled time. But, let’s say that out of caution or the employer’s own convenience, it pays employees for their early arrivals because as management has stated on several occasions, it likes the fact that there are employees at work early. If the employer stops paying for this early arrival time, do employees have a claim for unpaid wages? Such was the case recently addressed by the federal court in Illinois for the northern district. Plaintiff, on behalf of a class of employees similarly situated, sued their employer Freudenberg Household Products, LLC claiming that defendant paid employees for ...

If there is one thing this blog harps on, it is keeping good documentation ( for more articles, click  here ,  here ,  here  or even  here ). Annual performance evaluations, consistently documenting violations of the employers’ rules, documenting an employees’ receipt of company policies regarding things like sexual harassment and anti-discrimination, etc., are all essential for employers. Not only does this make for a good workplace, in the event you are sued by one of your former employees this documentation will prove essential to your defense. Probably the most important component of any defense is the employee’s performance evaluations. The employees who sue are generally the ones who are fired. Being able to point to documents showing that their negative performance was the reason they were fired, and not their race, gender, sexual orientation, etc., is crucial in such a lawsuit. So what should a good performance evaluation contain that will hel...

When leadership in the workplace changes, sometimes the culture of the workplace changes as well. When the leadership change includes leaders of a different political affiliation than the previous administration, some employees tend to attribute any negative action towards them as politically motivated. It would be naïve to express that politics never has a role in who is favored or disfavored in the workplace, but it takes more than suspicion or unsupported conclusions to convince a court that an employee’s rights were violated. This week, the 7th Circuit again addressed the issue of what it takes to prove unlawful employment decisions based on political affiliation. In Daza v. Indiana , plaintiff Daza worked for the Indiana Department of Transportation (INDOT) for a number of years allegedly under management by Democratic affiliated administrators. Once a Republican director and department heads, were appointed, he believed that they picked on him, according to him, because of h...

Yesterday, the 11th Circuit Court of Appeals heard arguments on just this issue . The plaintiff, Andrea Gogel, worked for Kia Motor Mfg. in Georgia as an HR manager. In fact, she was a team leader assigned to handle complaints of discrimination and other workplace violations. After coming to believe that she too was a victim of unlawful conduct by the company, she filed a charge with EEOC alleging gender and national origin discrimination. Two other employees filed similar charges after they and Gogel on their behalf received no satisfactory resolution to their complaints. When the company noticed that all three employees were represented by the same lawyer, it discovered that Gogel had provided the lawyer’s name to the other two employees (although she claimed that she had not actually hired that lawyer yet herself), it did what most employers would do, it discharged her. She then amended her charge to include a claim for retaliation, claiming that she had the right to ...

No. Or at least not if they want to keep their jobs. Under federal law, marijuana is still illegal and U.S. Department of Transportation Regulations (USDOT) still require employers to test CDL holders that perform safety-sensitive position jobs (which almost all CDL holders do) for drugs, including marijuana (see  49 CFR Part 40 ). If the CDL holder tests positive for marijuana, he or she must be immediately prohibited from performing the safety-sensitive job. What about the conflict between state and federal law? Illinois law makes it illegal for employers to discipline employees for consuming marijuana outside of work. What if a CDL holder uses cannabis outside of work? The CDL holder must still be removed from the safety-sensitive job. Federal law trumps state law, and the USDOT regulations take precedence over Illinois law. The Supremacy Clause of the Constitution holds that whenever state and federal law conflict, federal law controls. Additionally, USDOT ...

The 7th Circuit Court of Appeals reminded us last week that it is a fine line sometimes between an employee resigning voluntarily or being constructively discharged. In Ulrey v. Reichhart , the plaintiff was an assistant principal in a junior/senior high school. She enjoyed due process protections like many public employees, especially school personnel, and she could only be discharged for good cause after being given an opportunity to be heard. It seems that the plaintiff did not get along well with the defendant, the school district superintendent. Among other concerns, an issue arose regarding whether the plaintiff had completed the necessary coursework to renew her administrator’s license, a requirement for her position. It seemed that a mix up had occurred over this information for the plaintiff as well as other employees of the school district. After the plaintiff either failed or was unable to correct the mix up with respect to her coursework, the defendant superinten...

In a surprising move, the Supreme Court declined to hear a case that many thought would provide some guidance on what needs to be done to make websites compliant with the Americans with Disabilities Act (ADA) . The case, Robles v. Domino’s Pizza, LLC , involved a blind man, Robles, who sued Dominos’ after he claimed that he was unable to order pizza from the company’s website. Robles won, with both the district and appellate courts finding that that the company failed in its duty to make the services provided on its website accessible to those with disabilities. Domino’s appealed to the Supreme Court, and most legal observers expected the Court to take the case to provide some clarity on whether the ADA requires companies to make their websites accessible to those with disabilities, and if it does, what those companies need to do. So it was surprising when it declined to do so. The argument that websites must be accessible to those with disabilities comes from Title III of t...

Employers are still struggling with the enforcement of their drug and alcohol testing policies after the new year when recreational cannabis use and sales are legal in Illinois. The main problem? No reliable test exists to determine whether an employee is under the influence at the time of testing because indicators of cannabis use are detectable long after the “high” is gone. Add to that the fact that existing Illinois law prohibits adverse employment action against an individual for their lawful off duty activities, including cannabis use after the first of the year 2020. Given that, is there any purpose in testing for cannabis after January 1st? Some advisers say no to that question. It is certainly true that pre-employment drug screens should no longer test for cannabis use. The same might be said for random drug and alcohol testing. Reasonable suspicion testing presents a different situation though.  A drug screen that includes cannabis testing can still be useful as co...

Police and fire pension fund managers outside of Chicago should take note of recently passed P.A. 101-0546 . The law clarifies what managers of these funds must do to locate owners of unclaimed pension funds while also requiring annual reporting to the State Treasurer. The law requires police and fire pension funds to file a report with the State Treasurer which lists fund beneficiaries who either cannot be located and provided benefits. The beneficiary’s last known address and Social Security Number must be provided to the Treasurer, along with the amount of money the fund owes the beneficiary. This report must be filed by November 1 each year (starting in 2020) and must cover the preceding July 1st to June 30th. The law also requires that funds to try additional measures to contact beneficiaries it cannot locate through mail, telephone, and email. It also requires funds to ask the beneficiary’s former employers to search their records for the beneficiary’s contact informat...

Tuesday is a big day at the U.S. Supreme Court as the justices hear oral arguments on three Title VII cases. Bostock v. Clayton County and Altitude Express v. Zarda (argued together) both ask whether Title VII covers sexual orientation discrimination claims. The Court will also hear R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission , which asks whether the scope of Title VII protection extends to transgender people. In Bostock , Gerald Bostock worked as a social worker in Clayton County, GA. Although he received fairly good performance reviews, he was subsequently fired when his employer discovered he was gay. In Altitude Express , Donald Zarda was a skydiving instructor. Usually, new skydivers must be attached to experienced instructors while diving. Zarda would tell a woman not to worry about being strapped to him because he was gay. Zarda’s employer ultimately fired him as well. The 2nd Circuit Court of Appeals ruled in favor of Zarda find...

We are often asked for advice by clients when they discover through the magic and over-sharing of social media that their employee who is on an FMLA leave, either continuous or intermittent, is doing something that seems more like fun and less like recuperating or being incapacitated from working. Normally this creates a good deal of ire not only among supervisors and managers but often even more so in co-workers, who sometimes are even more offended than management by FMLA abuse. The fact is that many employees suffer from health conditions, big and small, and still report to work on a regular basis. They can sometimes feel truly offended when they see or hear of a co-worker who is “playing up” a medical condition for the purpose of taking off of work. So, addressing FMLA abuse is as much about enforcing policies as it is about maintaining morale in the workplace. Here’s a couple of examples that commonly arise in some form that can be a little tricky for employers. The first...

The big news last week was the Department of Labor’s announcement that it would increase the salary for employees exempt from the Fair Labor Standards Act’s (FLSA) overtime requirement from $455 per week ($23,660 annually) to $684 per week ($35,568 annually). The FLSA requires employers to pay employees working more than 40 hours per week one and a half times their regular pay for each hour worked over 40. Employees making $455 per week or more were exempt from this requirement. Now that exemption has increased to $684 per week. The rule takes effect on January 1, 2020, a mere three months from now. What do employers need to do to get ready for it? Here are some of my suggestions: Prepare a list of potentially affected employees. Go through your payroll and find each employee performing white-collar duties who makes between $455 per week and $684 per week. Make sure that these employees are paid time and a half starting January 1. Consider increasing the salaries o...