Author Archives: smithamundsen

Supreme Court Rules ADEA Extends to Small Government Employers

Contributed by Carlos Arévalo, November 6, 2018

GavelBW

Black and white gavel

On Tuesday November 6th, slightly over five weeks after hearing oral arguments, the Supreme Court, by an 8-0 vote, ruled that small government units are covered under the Age Discrimination in Employment Act (ADEA) regardless of their size.  In so doing, the Supreme Court resolved a circuit court split between the 9th Circuit and the 6th, 7th, 8th and 10th Circuits, where the latter courts ruled that the ADEA’s requirement of at least 20 employees for coverage of private-sector employers also applied to state and local governments.

In Guido v. Mount Lemmon Fire District, the plaintiffs worked for a small fire protection district in Arizona. When its two oldest employees were laid off to offset fiscal challenges, they sued alleging that their termination violated the ADEA. The District Court dismissed their claim because their employer did not meet the 20 employee threshold. The Ninth Circuit, however, reversed and the case made its way to the Supreme Court.

Writing for the Supreme Court, Justice Ruth Bader Ginsburg examined a series of amendments affecting both Title VII and the ADEA. Specifically, Justice Ginsburg noted that as originally enacted both laws imposed liability only on private sector employers defined to include a person “engaged in industry affecting commerce whose employees met a numerical threshold.”  In 1972, Title VII was amended to expand its coverage by defining “person” to include “governments, governmental agencies [and] political subdivisions” if they had fifteen or more employees.  Then, in 1974, the ADEA was also amended.  However, unlike Title VII’s 1972 amendments, for the ADEA Congress specifically added “a state or political subdivision of a State” to the definition of “employer” without qualifying it with an employee numerical threshold. Justice Ginsburg found that the use of the phrase “also means” as it related to the definition of employer was “additive” rather than “clarifying.” Accordingly, this meant that for the ADEA Congress actually created a separate category of employer.

In the decision, the Court acknowledged that the ADEA was now given a broader reach than Title VII, but that this disparity was a “consequence of the different language Congress chose to employ.”  The Court also dismissed warnings about the impact on small government services noting that for 30 years the EEOC has consistently interpreted the ADEA to cover government employers of any size and that a majority of state statutes prohibit age discrimination by local governments of any size.

The Supreme Court’s first decision of this term impacts small government employers like Mount Lemmon Fire District in that they will no longer be able to escape liability under the ADEA based on the numerical threshold. Newly minted Justice Brett Kavanaugh did not take part in the decision because arguments took place shortly before his confirmation.

 

Illinois Opioid Pilot Program A.K.A. Medical Marijuana Law 2.0

Contributed by Mike Wong, November 6, 2018

Medical cannabis

Medical marijuana in prescription jar near stethoscope

On August 28, 2018, Illinois Governor, Bruce Rauner, signed into law the Opioid Alternative Pilot Program which expands and modifies the Illinois Medical Marijuana law in several important ways that are relevant to employers.

First and foremost, the Pilot Program allows doctors to certify if an individual qualifies to use medical marijuana under the Opioid Alternative Pilot Program as an alternative to prescribing opioids (such as Codeine, Norco, Vicodin, Hydrocodone, Demerol, or Percocet). In this day and age, almost any serious injury in which there is surgery or pain issues, doctors will prescribe a pain killer, which is often an opioid. Under the Opioid Alternative Pilot Program doctors will now have the ability to certify an individual to get medical marijuana, instead of prescribing opioids.  In doing so, an employee’s doctor must certify that the employee has been “diagnosed with and is currently undergoing treatment for a medical condition where an opioid has been or could be prescribed.” Once the doctor’s written certification is uploaded to the Illinois Cannabis Tracking System and verified, the employee will receive a “Provisional Registration” which will allow the individual to purchase medical marijuana for a period of 90 days. While we are waiting on the Illinois agencies to issue rules and regulations to clarify this process, it appears this “Provisional Registration” will allow an individual to purchase medical marijuana the same day that they receive the written certification – much like an individual could pick up a prescription for opioids from a pharmacy the same day they visited their doctor and got the opioid prescription.

The law also extends “Provisional Registrations” to individuals who are certified as having a debilitating medical condition. This means that individuals who seek to become registered medical marijuana users no longer have to wait three to four months to receive their registration cards before being able to purchase medical marijuana.  Rather, they can get a “Provisional Registration” simply by registering online through the Illinois Medical Cannabis Pilot Program’s eLicense System.  Once registered, individuals will get a Provisional Registration that will allow them to purchase medical marijuana while the Illinois Department of Public Health processes their application.

The law also expands access by removing the section of the law that prohibited individuals with certain criminal convictions from becoming registered users and with it the requirement for fingerprints and background checks.

All in all, the Opioid Alternative Pilot Program significantly expands who can get medical marijuana in Illinois and provides faster and easier access. This means that Illinois employers can expect to see more employees who are legally allowed to purchase and use medical marijuana in Illinois.

A few steps that employers can take to make sure they are ready for this program are:

  • Make sure managers and supervisors are aware of this change in the law and the importance of properly documenting any reasonable suspicion drug tests.
  • Make sure that Employee Handbook and Drug Testing Policies are up to date.
  • Understand how to enforce a Drug Free Workplace policy, without discriminating against a medical marijuana cardholder

*This article was changed after initial publication to make clear that the doctors will not be “prescribing” medical marijuana, but rather will be “certifying” that the individual has been “diagnosed with and is currently undergoing treatment for a medical condition where an opioid has been or could be prescribed.”

 

 

Politics & Election Law in the Workplace: Midterm Elections 2018

Contributed by Noah A. Frank and Brian M. Wacker, October 24, 2018

2018 election - 3d renderingIt’s that time again: Election Season. Employers must be aware of important legal issues when responding or reacting to politics in the workplace, as well as understanding workers’ rights to engage in the political process. This article provides key reminders to public and private employers to manage the workplace without accidentally violating relevant laws.

Imposing a blanket ban on political discussions may run afoul of the NLRA.         

The National Labor Relations Act (NLRA), which applies to private unionized and non-unionized workplaces, protects non-supervisory employees’ discussions about terms and conditions of employment. As such, employers may not prohibit all political discussion in the workplace because some political speech could intersect with work-related matters (e.g., immigration reform, equal pay, or the minimum wage) and therefore may be protected.

The same is true for an employer’s ban of political insignia in the workplace: an employer may prohibit buttons, signs, or clothing bearing pure political speech in the workplace (e.g., “Vote for Candidate X!”), a ban on similar insignia sufficiently connected to employment issues (e.g., “Vote for Candidate X to raise the minimum wage!”) may violate the NLRA.

Political speech may also implicate anti-discrimination, anti-harassment, & anti-bullying protections.

Hot political issues may overlap with an employee’s protected status. For example, impassioned conversations may be deemed discriminatory or harassing to an individual based on race, religion, national origin, religion, or gender, and, as applicable, could even implicate anti-bullying laws. For example, consider recent issues related to the #MeToo movement, harassment of non-English speakers at restaurants, or even Justice Brett Kavanaugh’s confirmation hearings.

Employers must be careful that political discourse in the workplace does not create a hostile or discriminatory work environment for other employees, or otherwise implicate various equal employment opportunity and civil rights laws on federal, state, and local levels.  Remember: the workplace is not the place to “try out” new material – especially for supervisory and management personnel.

Avoiding a 1st Amendment Covfefe.

The First Amendment protects public employees from discipline and termination as a result of their protected free speech and political views or activities.  Many local ordinances similarly protect county, municipal, and other public agency employees’ political speech.  That said, public employees may not lawfully use public resources – including on-the-clock time – for campaign activities.

The First Amendment does not constrain private employers from banning political discussion in the workplace (subject to the above).  But proceed with caution.  Some state and local laws (such as D.C., California, and New York) prohibit discrimination based on political affiliation and political activity outside of the workplace.  Additionally, some states (like Illinois) prohibit employers from gathering or keeping records of employees’ associations, political activities, publications, communications, or non-employment activities. Similarly, many states (like Illinois, Wisconsin, and Missouri) protect an employee’s privacy surrounding their off-duty political speech on the internet, including speech on social media sites like Facebook or Twitter.

Of course, all employers have a legitimate and lawful interest in ensuring that employees are productive and that political discussions or activities do not impede the normal business operations, especially during working hours.  Related employment policies should be neutral without favoring a certain political view.

Private employers may persuade only a “restricted class” of individuals to vote for or against a political candidate.

Federal election laws define this restricted class as “executive or administrative personnel” who receive a salary and have policymaking, managerial, professional, or supervisory responsibilities.  However, a corporation may not advocate for a particular candidate or political party in its communications to employees outside of the restricted class, including hourly employees.

Employees probably have the right to voter leave.

In many states, employees have the right to take time away from work to exercise their vote.  Often times, missed worktime is paid, but employers can mandate the hours the employee takes so as to minimize the disruption to the workforce and paid leave.

For example, Illinois employees are entitled to two hours of leave, “without penalty,” when the polls are open to vote.  The employee must request the leave at least the day before the election (note: requests made on Election Day may be denied).  The employer may dictate the hours of leave.  However, employers must permit a two hour absence during one’s actual work day where an employee’s working hours begin less than two hours after polls open and end less than two hours before the polls close.  For example, if the polls are open from 6:00 a.m. to 7:00 p.m., then:

  • An employee working a 5:00 a.m. to 9:00 p.m. “double” would be given two hours of paid leave to vote, at a time chosen by the employer.
  • An employee working 6:00 a.m. to 6:00 p.m. either would need to be either (a) released by 5:00 p.m. (and paid for the one hour of missed work) to have a two-hour period to vote, or (b) allowed any other two-hour period off work while the polls are open, with pay, to vote.
  • An employee working from 6:00 a.m. to 3:00 p.m. may be directed to vote after work, without additional compensation.

Missouri employees may take up to three hours of paid leave– but only if the employee actually votes.  Wisconsin permits up to three hours of unpaid leave.  Like Illinois, Missouri and Wisconsin employees must provide notice before Election Day, and employers may dictate the time of leave.

Unlike its Midwest sisters, Indiana has no specific employment voting leave rights.

Of course, California provides unique challenges for companies operating in different states.  Employees must be granted “enough” leave so that they will actually be able to vote, but only two hours of working time needs to be paid.  California employers must post a “Time Off to Vote” notice at least ten days before any state-wide election (failure to post would likely excuse employees from giving at least two working days’ notice of their need for time off to vote).

Employers may want to encourage early and absentee voting.

To minimize disruptions to the work day, employers may want to try to encourage employees to take advantage of early and absentee voting as permitted by the various states.  For example, in Illinois any eligible voter may now request to vote by mail. (It used to be permitted in only special circumstances when a voter was absent from his/her home jurisdiction).

Election judge leave may also be protected.

Wisconsin requires employers to provide an unpaid leave of absence for the entire Election Day to any employee who is appointed to serve as an election official. Employees making this request must give the employer seven days’ notice, and the employer is entitled to request that the election district’s municipal clerk verify the appointment.

Illinois companies with 25 or more employees may limit 10% of the workforce to serve as election judges.  Employee(s) must provide twenty (20) days’ notice of need for leave.  While this time need not be paid, employers may not otherwise penalize employees nor require use of paid time off.

California protects employees from suspension and discharge while serving as an election worker, while Missouri and Indiana have no specific laws on the topic.

The Bottom Line:

Election law is state (and sometimes county and city) specific.  If the election cycle is creating any sort of workplace tension, employers should revisit conduct standards, anti-harassment / workplace bullying policies, and reporting procedures.  Experienced employment counsel may assist with implementing sound policies and practices to help manage workplace issues that may arise during election season.

 

Helpful Guidance in Determining a Position’s Essential Functions under the ADA

Contributed by Allison P. Sues, October 19, 2018

16306823 - 3d illustration of scales of justice and gavel on orange background

Illustration of scales of justice and gavel on orange background

A recent decision from the U.S. District Court for the Northern District of Illinois sheds light on how to determine what job tasks are properly considered essential functions of a position under the Americans with Disabilities Act (ADA). A plaintiff alleging that her employer denied her a reasonable accommodation for her disability must prove that she is a qualified individual, which requires showing that she can perform all the essential functions of the job with or without an accommodation. In the recent decision, the court dismissed a police officer’s failure to accommodate claim because the police officer could not perform certain functions deemed essential to her position. Specifically, she could not ambulate independently or handle a firearm. The police officer claimed these duties were not essential because she was on limited duty indefinitely and spent most of her days working at a desk.

The court delved into federal regulations and case law to determine whether a particular job duty should be deemed essential. Written job descriptions and other indications of an employer’s judgment about a position’s essential functions provide convincing – but not controlling – evidence. Courts will also consider other evidence regarding whether a task is essential, including the amount of time the employee typically spends on the function, the consequence of not requiring the employee to perform the function, terms of any collective bargaining agreement, and the work experience of prior employees or other current employees in that same position. Courts may also make additional inquiries, more likely determining that a function is essential if any of the following are true: (i) the position exists to perform the function, (ii) there are a limited number of employees among whom the function can be distributed; (iii) the function is highly specialized and/or the employee was employed specifically for her expertise or ability to perform that function.

The court also provided helpful analysis in determining essential functions where an employee is responsible for multiple tasks on a rotating basis. A court will likely find that each of the multiple duties are essential functions, even where the employee completes some of the duties only rarely, if the employer can justify why it requires each employee in that position to be able to complete all duties. An employer may satisfy this burden by showing, for example, that the workforce is too small to justify hiring specialists for each separate task or that there are unexpected surges in demand for a particular task.

The court found that even here where the plaintiff did not generally handle a firearm in her limited duty position, the police force could require all officers to be able to handle a firearm regardless of their day-to-day duties because being able to arrest someone is a central purpose of the police force.

Employers should analyze each position in the workforce to understand the position’s essential duties before an issue arises. Being able to differentiate between essential functions and marginal functions will assist an employer in determining its obligations when an employee requests a reasonable accommodation. While an employer may be required to excuse an employee from completing marginal functions, the ADA does not require it to excuse an employee from performing essential functions.  However, it may need to provide accommodations to enable the employee to perform those essential functions.

 

Expense Reimbursements – Time to Update Policies

Contributed by Noah A. Frank, October 17, 2018

Effective January 1, 2019, the Illinois Wage Payment and Collection Act requires employers to reimburse “necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer.”

56133528 - travel expenses design, vector illustration eps10 graphic

Travel expenses design, with airplane and money

Here’s what you need to know now to prepare

While the law requires reimbursement of expenses which are for the primary benefit of the employer, employers are not responsible for expenses due to (i) the employee’s negligence, (ii) normal wear, or (iii) theft (unless the theft was the result of the employer’s negligence). Employees have at least 30 calendar days to submit supporting documentation, or a signed statement as to why such support is nonexistent, missing, or lost.

An employee is not entitled to reimbursement if he/she fails to comply with an established written expense reimbursement policy. The policy may set guidelines and specifications on what is reimbursable, as long as it is not de minimus or nonexistentBut, if the employer authorizes or requires the employee to incur an expense, or fails to comply with its own policy, then the expense may become reimbursable.

While the Illinois Department of Labor has not clarified what types of expenses are reimbursable, the statute closely tracks California’s Labor Code 2802, which has been interpreted to require reimbursement for: personal automobile use at the IRS rate or the actual costs if higher; personal mobile phones and service used for work (even where minimal); training; business travel; tools; equipment; and uniforms (including apparel and accessories of distinctive design and color).  This list is not exhaustive, nor is it necessarily controlling on Illinois employers.  Both states’ laws provide for attorney fee shifting and penalties for violations.

What to do?  Spoiler alert – Enforce written policies

Review existing policies and procedures:

  • How, when, and where do employees submit receipts?
  • Are there limits on reasonable meal reimbursements?
  • What about class of travel for domestic vs. international flights?
  • Are these policies that the company can and does effectively, fairly, and consistently apply?

As BYOD (Bring Your Own Device) policies become more prevalent, employers must evaluate whether they are required to reimburse for the cost of all or a portion of the device (mobile phone, tablet, computer) and related voice, data, and internet services. Similarly, consider educational and business development expenses which are primarily for the employer’s benefit such as trade and industry subscriptions and memberships. Also address expenses currently incurred without forethought: e.g., curbing practices where employees purchase office supplies as they deem necessary.

Employers should consider having competent employment counsel review expense policies and ancillary documents for compliance and best practices. For example, update template release agreements to acknowledge that an employee received complete expense reimbursements.

 

OSHA Issues Memo on Incentive Programs and Drug Testing

Contributed by Matthew Horn, October 16, 2018

OSHA

Computer with “OSHA” on the screen

On October 11, 2018, OSHA issued an additional memorandum to further clarify its position on incentive programs and drug testing. While the memorandum does not set out drastic changes to OSHA’s earlier rule and guidance, it does indicate that OSHA will take a more practical approach to incentive programs and drug testing than previously indicated.

With regard to incentive programs, it indicates that traditional incentive programs based on a lack of injuries during a particular time period will not be deemed violative of OSHA if the employer has measures in place to ensure that employees are reporting injuries regardless of the programs. With regard to drug testing, it indicates that drug testing is allowed in the following circumstances: 1) random testing; 2) drug testing unrelated to an injury; 3) testing pursuant to a state’s workers compensation laws; 4) testing pursuant to federal law, including U.S. DOT rules; and 5) testing employees whose conduct could have caused or contributed to an incident or injury.

Notably, this memorandum appears to be another step in the right direction by the current administration to implement a more business friendly OSHA

Register Now! Protecting Intellectual Property Through Employment Contracts and HR Best Practices

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Protecting-IP_-11_1All businesses own some sort of intellectual property (IP), whether it’s trade secrets or proprietary business information – IP touches nearly every aspect of business. Employment contracts can be a deciding factor in determining IP ownership and avoiding or resolving IP disputes. HR professionals have a significant role to play in promoting the understanding of IP.

Join Jeffrey Glass and Jennifer Lacroix on Thursday, November 1 at 12:00 PM CT for the latest installment of our Labor & Employment Quarterly Series. They will discuss how the wording of IP provisions in employment contracts can make all the difference and why HR professionals should address IP with employees during both onboarding and exit interviews.

Who should attend? In House Counsel, C-Suite Executives, Risk Managers, HR Executives, Operations Professionals

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