The Workplace Report with Ancel Glink

Unlike more employer-friendly states like Florida, Indiana, or Texas, Illinois courts take a skeptical view of non-compete agreements. Our courts construe these agreements in favor of the employee, narrowly construing their employment and competition restrictions. And in cases where these agreements are poorly drafted, Illinois courts will refuse to enforce them. Here are five tips to ensure that your non-compete agreements do not get thrown out of court: Have a Reasonable Geographic Scope Non-compete agreements that prevent a former employee from working in a wide geographical area will not be enforced by Illinois courts. Agreements that prohibit employees from working anywhere in the State almost certainly are unenforceable. Whether a geographic scope is too broad is a factual determination to be made by the court, but if the geographic area in which the employee is prohibited from working makes it difficult for the employee to find a new job the non-compete agreement will...

What do you do about the employee who comes to work sick? The coughing and sneezing are not only making everyone else in the workplace cringe and rub sanitizing lotion on their hands but if everyone catches this virus, how will the work get done? Employers struggle with how to manage their workforce during the cold and flu season . On the one hand, employers typically encourage good attendance and praise the dedication of employees who come to work even though they feel under the weather. On the other hand, nobody wants to be around someone with a bad cold or flu; aside from the fact that  colds and flu are very contagious . For every “trooper” who works through an illness, many more will stay home until fully recuperated. It’s Okay to Send a Sick Employee Home First of all, employers have the obligation through state and federal regulation and often by collective bargaining agreement, to provide a safe work environment. This can include contagious disease. In order to...

The U.S. Department of Labor issued an interesting opinion letter earlier this month that I encourage employers who pay hourly employees bonuses to read (click here to do that). The letter is a reminder that bonuses may need to be included as part of an employee’s hourly wage when you are calculating how much overtime pay that employee is due. The Fair Labor Standards Act requires employers to pay employees making less than $35,568 a year 1.5 times their hourly rate of pay if they work overtime (more than 40 hours per week). This hourly rate includes non-discretionary bonuses (i.e. bonuses that the employer must pay the employee). It does not include discretionary bonuses (i.e. bonuses that the employer chooses to pay the employee because the employee performed well, the employer had a good year, etc.). This means that if an employer promises to pay an hourly employee a $3,000 bonus at the end of the year, this bonus must be included as part of the employee’s hourly rate. ...

CPD Sgt. Hosea Word took the promotional exam for Lieutenant in 2006 and scored 150th on the promotional list. Unfortunately for him, the Department promoted candidates 1 through 149 during the life of the eligibility list. When he took the promotional test again in 2015, he became suspicious of the integrity of the test when he learned that “wives and paramours” of CPD leadership scored unusually high. For instance, the wife of one member of leadership scored 280th on the previous promotional exam, but as a result of the 2015 testing, she skyrocketed to first on the promotion list. Certain that test rigging had occurred, Sgt. Word sued the City and CPD , alleging that CPD leadership snuck early test content to their “wives and paramours” resulting in those test-takers scoring very high on the test and receiving undeserved promotions to his detriment. Word alleged that this violated his constitutionally protected right to due process and equal protection and amounted to sex disc...

We have discussed how the  new recreational marijuana law  allows municipalities to prohibit police officers and firefighters from using recreational marijuana off duty. But what about medical marijuana? Can police officers and firefighters use medical marijuana off-duty? No. The medical marijuana law explicitly prohibits police officers and firefighters from using medical marijuana at any time, on or off duty. The law states: “This Act does not permit any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, the following conduct…The use of medical cannabis by an active duty law enforcement officer, correctional officer, correctional probation officer, or firefighter.”  410 ILCS 130/30(a)(9). Municipalities do not have to prohibit their police officers and firefighters from using recreational cannabis off duty. So, Illinois law sets up a rather odd situation where a police officer or firefighter ca...

Last week we identified new laws affecting employers , including public employers, for 2020. Below are additional new laws impacting the employment relationship effective January 1st: Organ Donor Protections (PA 101-0179): Prohibits employers from retaliating against an employee for requesting or obtaining a leave of absence to donate blood, an organ, or bone marrow. Use of Arrest Record (PA 101-0565): Amends the Human Rights Act. Clarifies the definition of arrest record to include an arrest not leading to a conviction; a juvenile record; or expunged, sealed or impounded criminal record history. Employers are prohibited by the Act to use an arrest record as the basis of a hiring decision for employment purposes. Graduate Students (PA 101-0380): Amends the Illinois Education Labor Relations Act. Redefines graduate students as educational employees if their role includes performing pre-professional duties such as teaching assistants or research. This allows graduate st...

Earlier this week, the 7th Circuit Court of Appeals found that the employer, City of Chicago, did not violate an employee’s First Amendment right to protected speech when he allegedly spoke out against a directive to include information in a report that, in his opinion, was not accurate. In the case of Lett v. City of Chicago , the plaintiff was an investigator for the Civilian Office of Police Accountability, which investigates allegations of police misconduct. According to his complaint, the Chief Administrator, in reviewing one of his case reports, directed him to include a statement that the investigation found that the police officer in question had planted a gun on a shooting victim. Plaintiff claimed that he did not find that statement to be accurate. Plaintiff alleged that he later complained to the Chief Administrator’s deputy about that directive. He also claimed that when the Chief Administrator learned of his conversation with the deputy, she removed him from his...

On December 20, 2019, the Illinois Governor signed into law PA 101-0620, thereby enacting a series of changes to Illinois’ labor laws, the Illinois Labor Relations Act (ILRA), and the Illinois Educational Labor Relations Act (IELRA). P.A. 101-0620 grants public sector labor unions in Illinois greater access to employee information in their bargaining units. It also addresses a point of contention between non-union members, unions, and employers after the landmark 2018 Supreme Court decision Janus v. American Federation of State, County and Municipal Employees, Council 31 . The amendments became effective immediately. P.A. 101-0620 broadens the reporting requirements of employee information by a public employer to bargaining unit representatives. Employers are obligated to provide union representatives with an employee’s job title, worksite location, work telephone numbers, work I.D. number (if available), any personal telephone numbers, date of hire, email address (if available)...

It’s a new year, a new decade, and, of course, new laws on the books affecting employers. Here are five laws coming into effect this year that employers should be aware of: Cannabis Is Legal The Cannabis Regulation and Tax Act went into effect on January 1. It is illegal for employers to discipline employees or job applicants for using cannabis outside of work . Drug testing technology cannot determine precisely when someone ingested cannabis. So don’t discipline an employee or withdraw a job to an applicant solely on the basis of a positive test. Also, update your personnel policies so that they prohibit your employees from coming to work impaired and provide your supervisors with ways to determine whether an employee is impaired.  We would be happy to help you with that . Annual Sexual Harassment Training is Now Mandatory The Workplace Transparency Act also came into effect on January 1. It is now mandatory for all employers, no matter their size, to provid...