Tag Archives: employers

Breaking News! Illinois Senate Refuses to Override Governor’s Veto

Inquiry into Illinois Applicant’s Salary Inquiry Remains Lawful – For Now.

Contributed by Noah A. Frank, November 9, 2017

gavelWe previously reported that Governor Rauner’s August 25, 2017 veto of HB 2462 amending the Illinois Equal Pay Act related to applicant salary history inquiries was subject to be overridden by the General Assembly.  On October 25, 2017, as predicted, the Illinois House voted to override the veto by a vote of 80-33 (less than the initial vote of 91-24 to pass the bill).  On November 9, 2017, the Illinois Senate voted against overriding the veto.  While 29 senators favored overriding the veto, they were seven short of the 36 required to override the veto (and still less than the original 35 to vote to pass the bill).

The battle is not over. 

In his veto, Governor Rauner suggested that the General Assembly adopt legislation similar to another state’s law.  As such, employers should expect legislation in 2018 in line with this new national trend, and prepare to revise job applications and interview questions accordingly.  We will keep you abreast of future Illinois and national developments.

Opioids in the Workplace

Contributed by Michael Wong, November 3, 2017

One of the first questions I ask when providing drug and alcohol training to managers, supervisors and employees is “What is the most commonly used illegal drug?” Typically, the response that I get will be alcohol (albeit not illegal) or marijuana. What most do not realize until the training is that prescription drugs, in particular opioids, are the most commonly abused illegal drug. Prescription opioids include hydrocodone, oxycodone, morphine, codeine and fentanyl, while illegal opioids include heroin.

J0337282Opioid use in the United States has started to take on a whole new form and is now commonly referred to as the opioid epidemic. Illinois has not escaped the opioid epidemic; in 2016 there were 2,278 drug overdose deaths of which over 80% (1,826) were opioid related. The number of opioid related deaths in 2016 was an increase of over 30% of the opioid related deaths in 2015 and an increase of over 70% of the number of opioid related deaths in 2013.

In looking at these numbers, it is important to understand that these are only the deaths – not the actual number of individuals using or abusing opioids. In a recent study by the National Safety Counsel, over one in three Illinois residents (35%) reported being impacted by opioid/heroin use by knowing someone (self, family/friend, co-worker/co-workers’ family, or neighbor/neighbor’s family) that started using opioids/heroin, became addicted to opioid/heroin, survived an opioid/heroin overdose or had died from an opioid/heroin overdose. Indeed, one issue with the opioid epidemic is that the gateway to opioid use does not always come from illegal activities, but can start out with a legitimate legal prescription. When there is a valid use for a prescription drug, an individual can feel like they are not doing anything wrong and their use can quickly turn into a slippery slope of addiction, activities that negatively impacts their work performance and potentially illegal activities. As a result of this, the opioid epidemic does not discriminate and can be found across all demographics, industries and positions.

One of the concerns with opioids for employers is that it is more difficult to tell if someone is under the influence or using opioids or heroin than other more traditional drugs. For instance, opioids and heroin do not come with symptoms or indicators that are easy to perceive like with alcohol – a smell, shaking hands and movements, and behavior changes; or with marijuana – a smell, red eyes, delayed reaction time, anxiety, and lack of coordination. With opioids, it is often difficult for employers to make the connection between an employee appearing groggy, sleepy or forgetful in the workplace to being linked to drug use. Indeed, what employers will typically see, if anything at all, is a gradual decline in an employee’s attendance and performance, until the employee loses their job or stops coming to work altogether.

The traditional tool of employers to identify and prevent drug and alcohol use within the workplace is drug testing. Pre-hire drug testing can be effective in preventing illegal opioid users from joining the workforce. However, drug testing is not always effective where the opioid user has a legal prescription or where the individual is not yet an opioid user. Reasonable suspicion drug testing can also be effective, but first requires reasonable suspicion of opioid use which can be difficult to identify.

So what does this leave? First and foremost, employers should re-evaluate their drug policies and testing procedures and understand the potential legal implications. For example, drug testing can be modified to test for legal prescription medications, but in order to avoid a violation of the ADA the applicant or employee must be able to provide an explanation for the positive drug test, such as a prescribed medication. Additionally, employers must realize that even if the employee is using prescription medication, there may be an underlying medical condition that they need to be aware of to avoid any kind of disability discrimination claim.

Next, employers should consider questioning its health care benefit carrier and workers’ compensation carrier on what actions they are taking to address the opioid epidemic and collaborating with them on any specialized programs or options for addressing. This can include learning about whether the carrier has programs for the conservative use and risk of prescription opioids, an opioid management program and/or a prescription benefit management program, which can help in preventing prescription medication abuse and identify the abuse of prescription medications. In doing so, employers should also consider investing in an employee assistance program (EAP), which can help employees avoid or address addiction.

Another investment that can pay dividends is management and employee education. Better training and education for not only management, but also employees regarding the impacts of opioids, how to identify opioid use and how to address opioid abuse. Management training can help make management more aware of how to identify potential issues before they occur and get employees help before it escalates to more serious problems. This includes not only taking into consideration the symptoms of opioid and other drug use, but also recognizing changes in how employees are acting, their performance, their attendance, any recent injuries they have had and any other issues that could indicate drug abuse. Employee training can help employees understand the danger of opioids, how the use of legal use of prescription opioids can lead to addiction, and what steps can be taken to seek assistance. Of course, any training should be tailored to include information regarding the Company’s policies, drug testing, benefit programs and reassurances regarding the Company’s commitment to providing confidential and accessible help and treatment.

Finally, one thing to remember is that despite the high numbers of deaths in 2016 in Illinois, Illinois is still behind many states in its exposure to the opioid epidemic. Indeed, in some places manufacturing employers have found using pre-hiring drug testing was not effective. The reason for this is it significantly increased the number of applicants they have had to go through in order to hire for a position or was making it near impossible to fill their staffing needs due to applicants not returning after learning there was drug testing or applicants consistently failing the drug test.

 

OVERTIME RULE UPDATE – DOL APPEALS PRELIMINARY INJUNCTION

Contributed by Noah A. Frank

As we previously reported, on 11/22/2016, Judge Amos Mazzant (E.D. Texas) granted a preliminary injunction that halted the 12/1/2016 implementation of the DOL’s Final Overtime Rule, which would have more-than-doubled the minimum salary level for executive/administrative/professional exempt employees.Wage-Hour2

On 12/1/2016, the U.S. DOL filed a notice of appeal to the Fifth Circuit Court of Appeals, indicating that it strongly believes that the DOL followed all required administrative processes, and there is no reason to delay implementation of the Final Rule.

This fight is not over. Employers that have not yet undertaken serious analysis of the duties of claimed exempt positions should do so promptly and determine the strategies they will implement should the injunction be vacated. Stay tuned for further news and analysis of this hotly evolving issue.

HR Director May Be Individually Liable Under FMLA

Contributed by Debra Mastrian

A recent Second Circuit case, Graziadio v. Culinary Institute of America, Case No. 15-888-cv (Mar. 17, 2016), offers a sobering lesson for human resources personnel and supervisors who handle the administration of leave requests under the Family and Medical Leave Act (FMLA). The Court held that an HR Director may be liable as an employer, as a “person who acts, directly or indirectly, in the interest of an employer” toward an employee. Finding that the FMLA definition of employer is similar to the definition under the Fair Labor Standards Act (FLSA), the Court agreed with other circuits (including the 3rd and 5th) who have applied the economic-reality test to find individual liability under the FMLA. [Note: The Seventh Circuit has not yet addressed the issue, although District Courts in Illinois and Indiana have issued opinions agreeing that individuals may be liable under the FMLA.]

The key issue under the economic-reality test is the power the individual has over the employee’s terms and conditions of employment, including whether the individual has the power to hire and fire the employee, maintains employment records, determines the rate and method of pay, or sets and supervises the work schedule. However, the most critical factor is whether or not the individual controlled FMLA leave.

EmployerIn Graziadio, the employee initially took leave to care for a sick child, and then later took additional leave to care for another child who had broken his leg. The Culinary Institute of America (CIA) took issue with the FMLA paperwork, claiming it was not sufficient to justify the absences, and would not let the employee return to work without new documentation. The CIA did not clarify what additional information was needed or why the original paperwork was insufficient. The HR Director never provided any clarification and refused to let the employee return without a face-to-face meeting. The meeting never occurred, but the employee provided updated medical documentation. The HR Director did not respond and ultimately terminated the employee for job abandonment. The employee sued the CIA and HR Director for interference and retaliation under the FMLA among other things.

The Second Circuit found there was sufficient evidence for a jury to conclude that the HR Director was an employer in economic reality and that she interfered with the employee’s rights. Even though the ultimate ability to terminate rested with the President, since the President did not conduct an independent investigation and agreed with the HR Director’s recommendation to terminate, the HR Director “played an important role.” The HR Director also exercised control of the employee’s schedule and conditions of employment by handling the FMLA leave, including reviewing the paperwork, and communicating with the employee.

What can employers take away from this case?  Until the United States Supreme Court weighs in on this issue, employers should inform HR personnel and supervisors handling FMLA requests of their potential individual liability and ensure they are regularly trained on compliance. If employers or their HR personnel choose to challenge an employee’s paperwork, they need to be prepared to provide specific reasons to justify their actions.

EEOC Electronic Charge Filing Is Coming – Are You Prepared?

Contributed by Noah A. Frank

In May 2015, the U.S. EEOC announced that 11 of 53 offices would begin to implement the ACT Digital Pilot Program, which facilitates communication between the EEOC and parties. The pilot program recently has been expanded to more offices, and appears to be here to stay. While this modernization and electronic communication appear appropriate at first, employers must be aware of the potential for significant pitfalls.

Employer Benefits:

Employers can use an online portal to obtain copies of discrimination charges, submit responses, and communicate with the EEOC. Employers are meant to benefit from increased speed of communication and charge processing, reduced physical paperwork, and no lost mail. Employers may also designate a nationwide single point of contact with the EEOC to avoid local managers or others from inappropriately receiving and handling charges.

Be Careful What You Wish For:

However, employers must be aware of the potential downfalls from the electronic system and electronic communication.

Employers may not necessarily gain from speeding up the EEOC investigation and conciliation process. While we all want to “get through” a charge quickly, there may be benefits to a slower paced process. For example, potential claims that were not included in the original charge may become time-barred by a statute of limitations if the charging party fails to file an amended charge.

Secondly, while the EEOC has indicated this is a secure system, employers in this digital age must be cognizant of potential concerns regarding information being uploaded through electronic means – no entity (even the U.S. Government) is immune from data breaches. Thus, participating employers should review what sensitive or confidential information they are uploading and/or redact such information when possible.

Finally, in the future employees may have the  ability to file electronic charges. Currently, a claimant must make the (minimal) effort of actually appearing at an EEOC office or mailing a charge of discrimination. Digitizing the process may allow disgruntled workers to file a charge from their desks or mobile devices immediately after receiving discipline, a sideways look, or hearing a single inappropriate comment. Remember, there are no monetary costs – just time and minimal effort – for an employee to initiate a charge. This digital filing removes all barriers to the worker, which could make impulse decisions to file charges the New Norm. Unfortunately, an employer may not opt-out of this part of the program!

Change Is Coming:

Employers need to be prepared well in advance, including:19261587_s

  • Updating and strengthening workplace policies and handbooks regarding use of electronic devices in the workplace during work time, including who may and may not use computers and mobile devices.
  • Ensuring that supervisors and managers are trained in anti-discrimination/harassment, including how to accept complaints. Don’t forget, some states, like California, mandate such training.
  • Consulting with experienced employment counsel to ensure compliance with federal, state, and local laws – here, the ounce of prevention is worth more than the ton of cure.