In the last regular session of the Illinois legislature, among other measures designed to enhance citizen safety, an amendment was adopted to the existing Police and Community Relations Improvement Act requiring police officers to undergo drug testing ...


New Legislation Requires Post Shooting Drug Testing of Police Officer and more...

New Legislation Requires Post Shooting Drug Testing of Police Officer

In the last regular session of the Illinois legislature, among other measures designed to enhance citizen safety, an amendment was adopted to the existing Police and Community Relations Improvement Act requiring police officers to undergo drug testing after officer involved shootings. The new legislation, which flew under the radar of most, is currently effective and reads as follows:

As the statute states, every department must develop a written policy. This may be as simple as just expanding current alcohol and drug testing policies to include post shooting situations or a closer look at implementing the statute as the first law in Illinois that mandates alcohol and drug testing of police.

Unionized police departments will face more issues, though. Even a quick reading of the new legislation reveals some gaping holes.  For instance, it does not specify the drugs that would be tested or how testing would be accomplished (urine, hair, blood, etc.).  Unions will likely demand input on these issues as well as ensuring that an officer subject to testing has the opportunity to speak to a union representative, along with the opportunity to bargain other matters, such as potential disciplinary action.

At least one police union has notified the employers of their members of the union’s demand to bargain both the decision and impact of implementing this new legislation.   While a number of issues regarding this amendment certainly exist, it appears that the state legislature has already made the decision about post shooting drug testing. Whether a police department is unionized or not, employers must comply with these new drug testing requirements. For assistance in drafting policies, identifying the parameters of bargaining obligations, or learning more about this new legislation, Ancel Glink labor and employment attorneys are here to help.

Eleventh Circuit Rules Breastfeeding is Covered under Title VII

On September 7, 2017, the Atlanta-based court became the second federal appeals court, joining the Fifth Circuit, to recognize breast feeding as covered under Title VII of the 1964 Civil Rights Act.

An Alabama police officer returned to work after giving birth to her child when she was denied a desk job to avoid wearing a ballistic vest that may potentially render her unable to breastfeed. Stephanie Hicks presented sufficient evidence that after her doctor determined the standard bullet proof vest could cause infections and compromise her ability to breastfeed, she was faced with a choice between walking a beat with no bullet proof vest or a specially fitted one. Although the specially fitted vest posed no threat to Hicks’ breast-feeding ability, the article would have gaping holes and, therefore, be both ineffective and dangerous.

The Eleventh Circuit found breast-feeding is a gender-specific condition to pregnancy, which is covered by the plain language of the Pregnancy Discrimination Act. The court found that under that Act, if an employer engages in unequal treatment based on an employee’s breast-feeding needs, it is both a violation of that Act and unlawful sex discrimination.

However, the court went on to state that although these actions may qualify as illegal sex discrimination, employers do not have to change the job duties of breast-feeding employees, or make other changes to accommodate their medical needs. Rather, the employer must treat accommodation requests from breast-feeding workers on the same terms as they would other similar accommodation requests, which was exactly the case with Hicks. The City would routinely provide desk jobs to other employees with temporary injuries as accommodations, but left Hicks to decide between two different options, both of which left her unprotected on the job.

Although this decision controls only three states included in the Eleventh Circuit – Alabama, Florida, and Georgia – other courts may follow suit. Employers should use this decision as a guide when addressing the needs of nursing mothers in the workplace.

FLSA Injunction Becomes Permanent

In November of 2016, a Texas federal district court issued a preliminary injunction which blocked the implementation of proposed amendments to the Fair Labor Standards Act’s (“FLSA”) overtime rules.  To recap, the Obama Administration had proposed changes to the overtime rules that would include raising the salary threshold for exempt employees from $23,660 to $47,476.  This change would have had a significant impact on many employers.  However, in November of 2016 U.S. District Judge Amos Mazzant issued an injunction preventing the new overtime rules from taking effect on December 1, 2016, as originally scheduled.  This meant that employers nationwide could put the overtime changes on hold.

On August 31, 2017, the hold became permanent.  Judge Mazzant’s decision invalidating the proposed changes to the overtime rules stressed that when Congress enacted the so called “white collar” exemptions of the FLSA it made it very clear that an employee’s job duties should determine whether or not the overtime exemption should apply.  The new salary threshold test would make the intent of Congress meaningless.  Specifically, the court explained that:
This significant increase would essentially make an employee’s duties, functions, or tasks irrelevant if the employee’s salary falls below the new minimum salary level.  As a result, entire categories of previously exempt employees who perform “bona fide executive, administrative, or professional capacity” duties would now qualify for…exemption based on salary alone…This is not what Congress intended.
In short, Judge Mazzant makes it clear that a rule change which eliminates the importance of the “duties” test is inconsistent with the intent of the FLSA’s overtime exemptions.  The Department of Labor (“DOL”) could appeal Judge Mazzant’s decision, but most think this is unlikely.  

So now the question becomes, what will happen next?  There is speculation that the Trump Administration may propose its own changes to the salary threshold test.  The thought is that the salary threshold may be increased to an amount between $35,000 and $38,000.  Such a change would not render moot the “duties” test for exempt employees, but would raise the threshold salary to an amount that is more reasonable for an exempt employee.

The Department of Labor “DOL”) has recently issued a request for information (“RFI”) asking the public for input to help guide it in the creation of new overtime rules.  Specifically, the DOL is seeking comment on several issues including, whether the current salary levels effectively identify exempt employees, whether a different salary level would more effectively identify exempt employees and whether changes to the duties test are necessary.  Comments are due by September 25, 2017.

For now, employers do not have to make any changes.  However, it is prudent to continue to review job descriptions to insure that exempt employees truly perform exempt duties.  It is also advisable to take a critical look at salaries and make sure that they are commensurate with the job market in which the employer operates.  If the threshold amount were to increase between $35,000 and $38,000 as some speculate it will, chances are slim that most exempt employees are not already earning salaries within this range.  As always, if you have any questions regarding FLSA exemptions, please feel free to contact the Ancel Glink labor and employment group.

How Should I Manage My Employees During a Natural Disaster?

The 2017 hurricane season has been particularly brutal, with two massive hurricanes devastating much of Texas and Florida. While we are fortunate that hurricanes are not a worry in Illinois, tornadoes, floods, and blizzards are all very much a part of life here. While the focus during these events is generally on rescue and recovery, one thing that may be on employers’ minds is what their responsibilities to their employees are during these natural disasters. 
Here are the answers to a few common questions that employers may have:

How Do I Pay Employees During a Natural Disaster?
Employers are only required to pay hourly employees for any hours worked during a natural disaster. So if an employer tells everyone to go home right before a major storm, hourly employees do not need to be paid for the time the workplace is closed, even if they were scheduled to work during this time and are willing to do so. The same is true if an hourly employee shows up to the office only to discover that it has been closed due to the natural disaster.

Salaried employees, in order to remain exempt from overtime pay, must continue to be paid a salary in any week in which they perform work. However, if the workplace is closed for an entire week during a disaster, then the salaried employee does not have to be paid. Additionally, an employer can require a salaried employee to use vacation days for any time missed due to the workplace being closed during a disaster.

Also, employers may receive offers from their employees to volunteer to help the employer recover from disasters. Employers should exercise caution with these requests, because this volunteer work could easily be construed as time for which the employer is required to compensate the employee, especially if the employee is performing work similar to his or her job duties.

Employers should remember that collective bargaining agreements, employee handbooks, or employment contracts may alter these rules. Therefore, employers should familiarize themselves with any employment agreements they have made with their employees that might deviate from what the law requires.

Do I Have a Special Duty to Keep My Employees Safe During an Emergency?
OSHA requires employers to keep their workplaces safe for their employees, including during natural disasters. Employees who believe that they have been put in imminent danger by being required to come to work during a natural disaster can file a complaint with OSHA. Honestly, if there is a chance that your workplace could be negatively impacted by a natural disaster, employers should just let their employees go home and stay there until the workplace is safe again.

Do I Need to Give My Employees Time Off in the Wake of a Natural Disaster?
There is no law that says an employee must have a certain amount of time to cope with the aftereffects of a natural disaster, but both the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) may require an employer to provide employees with time off to do this. If an employee or his or her family member is injured in a natural disaster, then that employee is entitled to up to 12 weeks of unpaid time off to care for his or her injuries or the injuries of a family member. Likewise, if an employee is injured during the natural disaster (either physically or psychologically), then the ADA requires employer to give the employee a “reasonable accommodation,” which means some kind of change to the workplace, that allows the employee to perform his or her job.

What Do I Need to Tell My Employees if Our Workplace Is Closed Indefinitely?
The Worker Adjustment and Retraining Notification (WARN) Act, which applies to employers with more than 75 employees, requires employers to provide employees with notice of mass layoffs and workplace closings. There is an exception for natural disasters, but an employer still needs to give employees as much notice as is practicable.

Employers should have policies in place for dealing with natural disasters so that they are not unprepared if one strikes. They may want to consider contacting an attorney to develop such a policy.

Selection of Mayor’s Security Detail Can Include Political Affiliation

Even members of a security detail can be exempt from First Amendment protections against political retaliation.

While we’re not sure if all police officers would find that being assigned to their mayor’s security detail would be a plum assignment, some members of the Chicago Police Department certainly do. So, when some of the officers who were assigned to Richard M. Daley’s security detail were overlooked for assignment to Mayor Emmanuel’s detail in favor of officers who had volunteered for Emmanuel during his campaign, Daley’s officers filed suit. Among their allegations was the claim that they were not retained on that security detail due to political retaliation. Presumably, those officers, who claimed to be better qualified to serve as security for a mayor, were overlooked in favor of Mayor Emmanuel’s political allies (the ones that volunteered during his campaign).

In affirming the dismissal of this claim last week, the 7th Circuit Court of Appeals noted that the First Amendment generally prohibits government employers from considering one's political views when making employment decisions, but political loyalty may be a valid job requirement in two situations: first, when the job involves policymaking, which entails exercising political judgment, and second, when the job gives one access to his boss's confidential, politically-sensitive thoughts.

Here, the court agreed with the defendants that officers that serve on a security detail are often privy to conversations of the elected official which might include confidential information or strategy discussions on subjects. It also recognized that officers who provide security to elected officials are with the elected official or his or her family in some cases, during intimate family moments where they have unusual access to personal information about the official. Quoting from its own ruling in a case more than 30 years ago, “you cannot run a government with officials who are forced to keep political enemies as their confidants.”

While most police officers in all but the highest ranks generally enjoy First Amendment protections in their employment as public employees, they might lose that protection when their assignment gives them access to the thoughts and strategies of elected officials.

The case is Houlihan v. City of Chicago, 16-2949, 2017 WL 3947661 (7th Cir. Sept. 8, 2017)

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