Often employers base discharge decisions on several reasons related to an employee’s conduct, performance or a combination of the two. It may be that an employee who had marginal performance developed an excessive absence problem which forced the ...

 

Shifting Reasons for Discharge Can Result in Employer Liability and more...



Shifting Reasons for Discharge Can Result in Employer Liability

Often employers base discharge decisions on several reasons related to an employee’s conduct, performance or a combination of the two. It may be that an employee who had marginal performance developed an excessive absence problem which forced the employer to decide whether that employee was still a valued contributor to the organization. While it is okay to have more than one reason for discharging an employee, it is not okay to reference only the “last straw” or most recent issue which ultimately led to the discharge decision.

This was brought home again in the recent 7th Circuit case of Donley v. Stryker Sales Corporation. The plaintiff in that case sued her former employer for retaliatory discharge when she was terminated shortly after she filed an internal sexual harassment complaint on behalf of another employee. The employer filed a position statement in response to plaintiff’s EEOC charge stating a reason for her discharge. When plaintiff filed a suit in federal court, the employer answered that complaint, stating a different reason for her discharge.

In reversing the district court’s grant of summary judgment to the defendant, the court found that the employer’s “shifting reasons” for discharge, in addition to the timing of the discharge being in such close proximity to the plaintiff’s sexual harassment report, created a question of whether the employer’s reasons for discharge were merely a pretext.

Employers need to carefully draft discharge documents and responses to charges of unlawful termination. While it is common to have several reasons for terminating an employee, it is important to reference all of the reasons and not just the last event or most prominent cause.
 

Illinois’s Mandatory Retirement Savings Program Is About to Take Effect. Here's What You Need to Know.

The Illinois Secure Choice Savings Program Act (820 ILCS 80/1) is set to roll out on November 1. Are you ready? The Act requires private sector employers who have more than 25 employees and who have been operating in Illinois for at least two years to participate in the Illinois Secure Choice program or another qualified retirement plan. Other qualified retirement plans include 401(k) plans, Simple IRAs, and SEP-IRA plans, among others.

Employers who are required to participate in the Secure Choice program must withhold 5% of an employee’s compensation from his or her paycheck unless the employee opts out of the program or requests a different amount to be withheld. Employers then remit the amount withheld to the state-run program. Employers are not permitted to make any contributions. The program is administered by a seven-person board, which contracts out the administration of the fund to a third-party. The Secure Choice savings plan is a Roth IRA. The default investment option is a target date index fund, but participants in the program can choose between a number of different options.

The Act requires employers to distribute informational materials about the program to all employees. These program materials should be provided to employers by someone from the program, but if employers have not received the materials, they may want to contact the Treasurer’s Department, who administers the program (You can do so online by clicking here or by calling: (312) 814-8955).

Employers who are required to participate in the program but who do not do so may be subject to fines and penalties. The Secure Choice program is separate from the Illinois pension system, and is designed to give private-sector employees IRAs that they can manage. Employers with fewer than 25 employees who would like to participate will likely be able to do so after the program finishes rolling out in 2019.

Starting on November 1, employers with more than 500 employees and who are required to enroll in the program must begin enrolling employees. In July 2019, employers with 100-499 employees must begin enrolling employees, and in November 2019, employers with 25-99 employees must begin enrolling. Employers can enroll employees by visiting www.ilsecurechoice.com.

Feel free to contact me by email at mdicianni@ancelglink.com  or by phone: (312) 604-9125) if you have any questions about the Secure Choice program or would like help enrolling.
 

Pregnancy Is Not The Same As On The Job Injury Under PDA

Many jobs require limited or no accommodation when a worker is pregnant because the work is not physically strenuous. Some jobs, though, present concerns for the pregnant worker almost right off the bat. Police Officer, Firefighter and EMT or Paramedic come to mind immediately, where the physical demands of the jobs can place a pregnancy at risk.

Both the federal Pregnancy Discrimination Act (PDA) and the state Human Rights Act prohibit discrimination of pregnant employees and require employers to make reasonable accommodations to pregnant workers. The question though for local government employers of police, fire, paramedic and similar workers with physically demanding jobs is how to accommodate an employee who really can’t do the job at all due to pregnancy.

Generally, pregnant workers who are unable to do their job request a temporary light duty assignment. For a brief period of time, Illinois law required that pregnant police officers were entitled to light duty while unable to perform the duties of their position. That was revised in favor of additions to the Human Rights Act which prohibits discrimination based on pregnancy and entitles pregnant workers covered by the Act to reasonable accommodation as required for employees with disabilities, virtually identical to the protections under the PDA.

Most pregnant workers who are restricted from performing one or more essential functions of their job request light duty assignments for the duration of their pregnancy and recovery from childbirth. In analyzing a request like this, an employer should first look to their own policies. If the employer has a light duty policy that applies to any worker with a temporary inability to do their job, it should adhere to the terms of the policy.

If an employer has no light duty policy, then it should analyze whether it has a light duty assignment suitable for the employee for the duration of the pregnancy or for any part of it. Employers should keep in mind that it is not necessary to create work for the employee, but if work that is part of the regular function of the employer that the employee is capable of performing, is available, even for part of the time of incapacity, then the employer should consider the assignment just as it would for any other employee who was temporarily unable to do their regular job due to injury or illness.

What about if an employer has a light duty policy that restricts eligibility for light duty only to employees who suffered on the job injuries? And maybe add to that the fact that actual light duty assignments exist but are denied to the pregnant worker. Is the employer violating the PDA and the Human Rights Act by following its policy that light duty is only available to workers injured on the job?

Recently, a federal court in Alabama ruled that an employer did not violate the PDA when it denied a pregnant EMT a light duty assignment pursuant to its policy that made such assignments available only for on the job injuries. The court held that the PDA does not require an employer to provide special accommodations to its pregnant employees, only that pregnant employees are given the same opportunities and benefits as non-pregnant employees who are similarly limited in their ability to work. If an employee's pregnancy prevents her from fulfilling the duties of her position, her employer is not obligated to treat her any differently than it would treat a non-pregnant employee in the same position.

Federal and state laws prohibit discrimination of pregnant workers, but do not require more favorable treatment. It is lawful to treat workers who were injured on the job differently than those who were not. It is important though that pregnant employees are treated the same as other workers who are temporarily unable to do their jobs due to non-work related injuries or illnesses.

Reasonable accommodation requests can be tricky. It is always wise to check with an experienced labor and employment attorney when a request is made. The labor and employment group at Ancel Glink can guide you through the reasonable accommodation analysis. Contact me at mkostopulos@ancelglink.com to discuss how we can assist you in any of your labor and employment needs.
 

Should You Require Your Employees to Engage in Arbitration?

Last May, the Supreme Court issued a landmark decision that permitted employers to require employees to give up their right to bring a class action lawsuit against the employer and instead arbitrate such a dispute. In light of this, should you require your employees to sign a class action waiver? Here are some pros and cons to doing so that you might want to consider.

PROS
  • Arbitration is usually cheaper than litigation. Arbitration does not involve most of the formalities that litigation generally involves. There is no complex pleading stage or formal discovery. And there is no trial. Rather, the parties submit their evidence to an arbitrator in a more informal setting than litigation, which tends to reduce the cost.
  • Arbitration is faster than litigation. As noted above, arbitration is more informal than litigation, so the complex procedures and delays associated with litigation are not a part of arbitration. Therefore, disputes referred to arbitration are typically resolved in months, not years like litigation.
  • Employers have more control over an arbitrator than a jury. Most arbitration agreements give an employer some discretion in choosing an arbitrator, thereby giving the employer some idea as to how the arbitrator will decide the case. An employer has no control over the judge that presides over a case, and little control over a jury. Juries are famously unpredictable, so an employer can avoid this risk through arbitration.
  • Arbitration is confidential. Employment lawsuits, even ones that are totally unfounded, never make an employer look good. And since lawsuits are public record, every unfounded allegation of an employee could be printed in the paper. Arbitration eliminates this problem, keeping the entire dispute private.

CONS
  • Arbitrators often try to keep both sides happy. Arbitrators often try to give both sides something, even if one side has a meritless claim. Frivolous lawsuits are more likely to be tossed out of court, and in the most egregious cases the employee filing the frivolous suit will be required to pay the attorneys’ fees of the employer. Also, arbitrators may let a frivolous claim drag on longer than a court, who is not getting paid an hourly fee (which is footed by the employer) to work on a case. Overworked courts have no problem jettisoning meritless suits.
  • The informal nature of arbitration may hurt employers. Hearsay and questionable documentary evidence which would be excluded in court may find its way into an arbitration hearing.
  • The EEOC is not bound by an arbitration agreement. All the money that you pay your lawyer to draft an arbitration agreement may go to waste if the EEOC gets involved, as they would not be bound by such an agreement.

On balance, I tend to think that arbitration agreements are worthwhile for most employers, particularly those employers with many employees. This is particularly true if the employees are paid hourly and therefore could bring a claim against the employer for not paying in accordance with wage and hour law. Feel free to contact me if you have any questions or thoughts about class action waivers.
 

Questions about Pregnancy (and other topics) Can Land Employers in Hot Water

It was recently reported that one of the larger law firms in the country had begun the practice of asking female attorneys in its litigation group whether they anticipated becoming pregnant in the upcoming year. The firm justified the question by stating that it was designed to assist in budgeting. The report did not state whether the firm was also asking their male associate attorneys whether they were planning on becoming fathers in the next year, leading many to conclude that either the firm is anti-pregnancy or it doesn’t expect that men will take any significant amount of time off for the birth of their baby.

As one can guess, questioning whether female associates were planning a pregnancy didn’t sit very well with them, or many others who read the same report. Immediately, there was social media buzz on the topic with many stating that the question is illegal. Actually, it’s not. It’s certainly insensitive, maybe even ignorant, and possibly evidence that certain firm leaders might make career decisions about their female associates based on how they answered that question. But asking the question is not itself illegal.

It is more accurately stated that an employer should carefully avoid asking for information that could form an illegal basis for making an employment decision, because if the employee or candidate suffers an adverse employment action, he or she, and maybe the EEOC or a court of competent jurisdiction, might find that the employer based its decision on the information they should have avoided. So, for instance, if the prominent law firm who asked about future pregnancies, discharges, demotes, or fails to promote an associate who foolishly answered that she was planning on being pregnant in the next year, you can pretty much bet that the associate will immediate relate the employment decision to her answer of that question. This puts the law firm employer in the position of having to defend against a lawsuit and all of the potential damage to reputation and expense that can cause, even if the employer shows that it had good reason for taking the adverse action, unrelated to the possible future pregnancy.

Here are some other bad questions to ask employees or job candidates:

  • Will you have child care if you need to work late or on weekends?
  • Who will watch your children when you have to travel for us?
  • How much longer do you plan on working now that you have a medical condition?
  • How much longer do you plan on working given your current age?

Even if the reason for asking questions of employees or job candidates is innocent, employers must be aware that asking for information, the use of which in making an employment decision would be illegal, is always a bad idea. A good idea is to avoid questions of employee and job candidates which touch on prohibited bases of employment decisions, but encourage employees to share plans that might impact their ability to perform their job in the customary way so that you, as the employer, can analyze the appropriate and lawful response.