Category Archives: employees’ rights

Illinois Hotel & Casino Employee Safety Act on Way to Passage

Contributed by Brian Wacker, April 2, 2019

Croupier behind gambling table in a casino.

More than two dozen Illinois State Senators have signed on to co-sponsor SB0075, a bill to enact the Illinois Hotel and Casino Safety Act (the “Act”). Likely to pass in the coming weeks, the Act will impose new requirements on hotels and casinos operating in Illinois to provide “panic buttons” to certain employees and adopt specific anti-sexual harassment policies.

What Does The Act Require?

The Panic Button

The panic button requirement is directed at hotel or casino employees placed in certain positions that may involve interacting with guests alone. 

Under the Act, hotels and casinos will be required to provide any employee who works in a guest room, restroom or casino floor “under circumstances where no other employee is present in the room or area, with a safety device or notification device.”  The device is to be provided to employees to use to summon help if they reasonably believe there is an ongoing crime, sexual harassment or assault or other emergency occurring in their presence. 

The Act will require the device to be provided to hotel or casino employees at no cost to them.

Anti-Sexual Harassment Policies

The Act will also require hotel and casino employers to develop or modify their anti-sexual harassment policies “to protect employees against sexual assault and sexual harassment by guests.”  Specifically, those policies will be required to contain provisions that:

  • Encourage employees to immediately report sexual assault or sexual harassment by guests;
  • Describe procedures that the employee and hotel or casino employer are to follow in cases of sexual assault or sexual harassment by guests;
  • Instruct employees to cease work and leave the immediate area where the danger is perceived until hotel or casino personnel or law enforcement arrive to assist;
  • Offer temporary work assignments to complaining employees during the duration of the offending guest’s stay at the hotel or casino (this could include assigning the employee to a different floor, station or work area);
  • Provide employees with necessary paid time off to sign police complaints against the offending guest and to testify in any legal proceedings which may ensue as a result of the sexual assault or harassment;
  • Inform employees that the Illinois Human Rights Act and Title VII of the Civil Rights Act provide them additional protections against harassment in the workplace; and
  • Inform employees that it is illegal for the hotel or casino employer to retaliate against employees who reasonably use the panic button device or otherwise avail themselves of the Act’s protections.

These new policies will need to be provided to all employees in English, Spanish and any other language predominant among the employer’s workforce.  The policies must also be posted in conspicuous places in the areas of the hotel or casino where employees can reasonably be expected to see them.

Employee Remedies for Violation of the Act

The Act will make it unlawful for a hotel or casino employer to retaliate against any employee who “reasonably uses” the panic button device, avails himself or herself of the protections of the Act, or who discloses, reports or testifies about any violation of the Act.  The Act also creates a private right of action for employees who allege violations of the Act. 

Remedies for violation of the Act are significant. In addition to injunctive relief to cease violations of the Act, it authorizes an employee to recover up to $350 per violation, with each day that a violation continues constituting a separate violation. The Act will also permit employees to seek equitable remedies such as reinstatement, and require that a hotel or casino employer pay reasonable attorneys’ fees and costs to successful employee claimants.  Note: this is a one-way street. The Act does not permit employers to recover attorneys’ fees and costs from unsuccessful claimants.

Employer Opportunity To Cure

Employees will, however, have to exhaust certain non-litigation remedies first.  Before bringing a claim under the Act, employees must (1) notify the hotel or casino employer, in writing, of the alleged violation and (2) allow the hotel or casino employer fifteen days to remedy the alleged violation. 

Effective Date

The Act will give hotel and casino operators in Illinois time to get into compliance. As currently drafted, the Act would not go into effect until July 1, 2020.

More Technology, More Headaches for Employers

Contributed by Noah A. Frank, June 7, 2018

Technology is great. I can use my smartphone to change a million TV channels without getting up (of course, there’s still nothing to watch until Game of Thrones returns).

technology

Close up of business man working on blank screen laptop computer 

Employers, too, are reaping the benefits of technology for the most routine areas of employee and facilities management – including timekeeping and building security. But with the transitions from handwritten and manually punched time cards to fingerprint scanner timeclocks, and mechanical keys to retinal scanners, employers face significant risk under privacy laws.

As a result, many states are beginning to pass employee privacy laws related to biometric data (including but not limited to retina or iris scans, fingerprints and voiceprints, and hand and face geometry). And with laws and regulations, comes the need for compliance to stave off lawsuits, including private causes of action and class actions.

For example, a Federal Court in Illinois recently found that, despite no concrete damage, an employee (and her putative class) might have a triable cause of action for violating her privacy and right to control her biometric data. The employer and its timekeeping vendor allegedly failed to:

  • inform the employee of the specific purpose or length of time fingerprints were to be collected, stored or used;
  • make available any biometric data retention policy or guidelines (if there was one);
  • obtain  employee releases and authorizations for the collection and use such biometric data;
  • and implement reasonable procedural safeguards.

The employer is further alleged to have systemically disclosed the biometric data by sharing it with the timekeeping vendor.

Biometric Data Done Right.

Biometric data is not something to be afraid of, as long as it is administered and used appropriately. The following key steps can help businesses ensure that they are complying with relevant laws:

  1. Establish a written policy that addresses the purpose(s) of biometric data use, how it will be collected, and how it will be stored.
  2. Be prepared to address any requests for reasonable accommodations based on disability, religious, or other reasons.
  3. If biometric data might leave a closed system, ensure that there are proper safeguards in place, including contractual liability shifting.
  4. Ensure that employees whose biometric data is used acknowledge the policy, and authorize its use and collection.
  5. Train supervisors on the company’s policies and practices to ensure consistency.
  6. Have the biometric data systems audited to ensure that data is not open to the public or a systems breach.
  7. Finally, consult with competent employment counsel to ensure that policies and practices comply with relevant law.

 

You CAN Ask Your Employees To Be Happy! Federal Appeals Court Reins In National Labor Relations Board (NLRB)

Contributed by Beverly Alfon, August 17­, 2017

Labor LawMuch has been written and discussed about the National Labor Relations Board’s (NLRB) attack on handbook policies over the past several years. The NLRB has found what many consider to be run-of-the-mill, standard policies that have, for many years, raised no issues or controversy, to be violative of the National Labor Relations Act (NLRA).

Last year, the NLRB struck down various policies in a handbook issued by T-Mobile, including one that encouraged employees to be professional and maintain a “positive work environment” in T-Mobile USA, Inc. v. NLRB, No. 16-60284 (5th Cir. 2017). In its decision, the Board reasoned: “[w]e find that employees would reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those protected by Section 7 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent with a ‘positive work environment.’” T-Mobile appealed the NLRB’s decision to the U.S. Court of Appeals for the Fifth Circuit.

Specifically, T-Mobile challenged the Board’s determination that the following provisions from its employee handbook violated the NLRA because they discouraged unionizing or other concerted activity protected by the Act. Provision (1) encouraged employees to “maintain a positive work environment”; (2) prohibited “[a]rguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork”; (3) prohibited all photography and audio or video recording in the workplace; and (4) prohibited access to electronic information by non-approved individuals.

On July 25, the Fifth Circuit held that the Board erred in finding that a reasonable employee would construe policies (1), (2), and (4) to prohibit protected activity. The Court reasoned:

In this case, where the record does not suggest that the rules have been applied in the context of union or collective activity, the ‘reasonable employee’ is a T-Mobile employee aware of his legal rights but who also interprets work rules as they apply to the everydayness of his job. The reasonable employee does not view every employer policy through the prism of the NLRA. Indeed, ‘[the Board] must not presume improper interference with employee rights.’

The Court did agree with the Board’s finding that a reasonable employee would construe policy (3) to prohibit protected activity. It reasoned that unlike the other policies such as the “workplace conduct” policy and “commitment –to-integrity” policy, the recording policy blanketedly forbids certain forms of clearly protected activity. For instance, it would prohibit an off-duty employee from taking a picture of a wage schedule. Notably, last month, the U.S. Court of Appeals for the Second Circuit upheld a similar NLRB decision on workplace recordings.

Bottom line: This federal appeals court decision in T-Mobile USA Inc. v. NLRB gives employers and their counsel additional basis for defending legitimate personnel policies in the face of numerous NLRB decisions issued over the past several years that have been viewed as an attempt to diminish management’s right to set basic employee standards in the workplace. However, it seems that blanket policies prohibiting workplace recordings continue to require careful wording and business justification.

The Risks of Email Communications

Contributed by Carlos Arévalo

Martin Lomasney, an early 20th Century Boston politician, once said “never write if you can speak, never speak if you can nod, never nod if you can wink.” Just last week, the United States Court of Appeals for the Seventh Circuit issued a decision illustrating the dangers of email communications and gave new life to a plaintiff’s claims that the reasons for her termination were the result of discrimination on the basis of her military service and disability.

In 2012, LuzMaria Arroyo, a United States Army Reservist and Veteran, sued her former employer Volvo Group of North America, LLC in federal court for discrimination, retaliation, and failure to provide reasonable accommodations in violation of the Uniform Services Employment and Reemployment Act (“USERRA”) and the Americans with Disabilities Act (“ADA”). In granting summary judgment, the district court found that Arroyo failed to show that her military service was a motivating factor for her termination. To meet the “motivating factor” standard, a direct admission from the employer is not required. Rather, a plaintiff can rely on circumstantial evidence that creates a “convincing mosaic” from which a reasonable jury could infer a discriminatory motive.

17103126_sIn its decision, the Seventh Circuit highlighted emails between members of management where they often complained about the burden placed on Volvo by Arroyo’s frequent use of military leave for training and/or deployments. One email made reference to “the undue hardship [Arroyo’s military leaves] were causing to [Volvo’s] operation.” Other emails questioned the need to extend Arroyo travel time plus the additional eight hour rest period before reporting to work following her military leave. Yet another contained an exchange between supervisors discussing disciplining, suspending or possibly firing Arroyo for her absences, but noting that Volvo likely had no recourse due to Arroyo’s military service. An email recommended that Arroyo be offered a severance package upon her return from deployment, which Arroyo rejected.  When Arroyo later requested accommodations related to her diagnosis of PTSD after her second Iraq tour, a supervisor reported in an email that “[Arroyo was] really becoming a pain with all this.” Her accommodation request was followed by progressive disciplinary steps, which standing alone were minor in nature, but cumulatively led to her termination. Ultimately, the Seventh Circuit noted that a jury could reasonably conclude that Volvo was looking for reasons to discharge Arroyo based on absences from work due to her military service, reversed summary judgment and sent the case back to the district court for trial.

So what can be learned from this decision?  At least one thing is certain:  members of management should heed Lomasney’s advice and not trade emails criticizing employees’ rights pursuant to USERRA, ADA or any other statutory provision.  While Volvo might still succeed at trial – even the Court acknowledged that Volvo granted Arroyo a considerable amount of military leave and did not directly discipline her for those absences – those critical comments will still have an impact and potentially undermine Volvo’s arguments that Arroyo’s military service was not a motivating factor in her termination.