What Employers Need to Know About “Trumpcare”
As you have probably heard, House Republicans recently released a proposal, which some have labeled “TrumpCcare,” that would make major changes to the Affordable Care Act (aka ObamaCare). While some Republicans have criticized the proposal
known as the American Health Care Act, as not changing ObamaCare enough, even referring to it as “ObamaCare Lite,” the proposal does make some pretty significant changes to the Affordable Care Act that employers should be aware of. Some of these include:
• The cap on the amount of money that an employee could contribute to a flexible spending account (FSA) would be repealed, and employees would be free to contribute as much as they want. Additionally, money in an FSA could be used to purchase over-the-counter medications.
The "Cadillac tax
", which imposes huge taxes on high-cost health insurance plans, will not go into effect until 2025. As we have discussed
, this tax, which was initially scheduled to go into effect last year, was delayed by two years because both Republicans and Democrats opposed it. Due to this opposition, I am skeptical that it will ever go into effect.
• Young adults can stay on their parents’ plan until they are 26.
• Employers will be permitted to deduct amounts paid for retiree prescription drug coverage as a business expense.
It is important to remember that the American Health Care Act is only a draft and will undergo further revisions in the Senate, and possibly from the White House, before it is passed. There is even a chance that it will not pass Congress, and the Affordable Care Act will remain in place. While the American Health Care Act makes its way through Congress, the Affordable Care Act will remain in place. It is anybody’s guess when the AHA will be passed, but it is unlikely that it will happen until at least the fall.
If it does pass Congress, the American Health Care Act, along with possible changes to the corporate tax system, will affect employers more than any other legislation in the near term. Therefore, you should stay tuned to our blog
Top 3 Reasons to Train Your Employees on Sexual Harassment and Hostile Work Environment
All too often, I have seen employers who are lulled into a false sense of security regarding sexual harassment and hostile work environment claims because they have a comprehensive sexual harassment policy in their employee handbook. I have conducted sexual harassment investigations where I have reviewed employers’ policies and found them to be excellent. Unfortunately, the investigation reveals that sexual harassment has occurred or an employee or employees have been subjected to a hostile work environment. How can this be? The policy is right there in black and white; it’s up to date; it contains timely examples of the type of conduct that is prohibited; it not only encourages reporting, but it explains how to report. So how then is it that the employer now faces a serious claim? Three words cover it all: lack of training.
Personnel handbooks are great. I believe that all employers should have some type of handbook. But to be useful, employees must actually know what’s in the handbook. Better yet, regarding very important issues that could result in significant liability to the employer, the employees should be trained on the relevant policy and given the opportunity to ask questions regarding the policy’s application and interpretation. This is particularly true of sexual harassment/hostile work environment policies. Below, are the top three reasons why you should make sure your employees are well trained on your sexual harassment/hostile work environment policies.
First, employees need to be well aware of the fact that the intent of the harasser is not what courts consider when reviewing sexual harassment claims. Instead, the court looks at how the victim of the harassment perceived the conduct. Many employees don’t know this and think that if their intent was benign, there’s no problem. This is not the case, and failure to understand this can be very costly.
The second reason to make sure that employees understand their employer’s harassment policy is that the employer can be held liable for employee misconduct that they were unaware of. So in the above example, the employee thought that since she was just joking around it wasn’t a problem. The employer had no idea anything was going on. Now, both the employee and the employer are in trouble, because the employee didn’t understand the policy. To avoid this scenario, training should also include encouragement to report misconduct, and it should be made clear that third parties who observe misconduct should report it; even though they are not directly involved. Finally, employers should routinely speak with employees to see how their work is going. Often such casual conversations will reveal problems that would otherwise go unnoticed.
Finally, the most important reason to insure that employees are properly trained on the employer’s harassment policies is that the employees and the employer may be named individually in a sexual harassment or hostile work environment lawsuit. It goes without saying that being named in a lawsuit is bad for a variety of reasons including but not limited to potential damage to credit and reputation.
So to recap, the harasser employee’s intent does not matter; the employer can be held liable even though they did not know of the harassment; and both the employee and the employer can be named individually in a harassment lawsuit. All of these things are bad, and employers can avoid them all. To do that, I recommend that employers regularly review and update their sexual harassment/hostile work environment policies and then, most importantly, train their employees.
Need to Find a Gender Neutral Bathroom? There’s an App for That
A great deal of the controversy over transgender rights revolves around bathroom use. Some states have actually legislated who uses which gendered bathroom. And nowhere has it been a hotter topic than in schools. But nationwide recognition of transgender rights has suffered some setbacks recently. The Trump administration withdrew the Departments of Education and Justice guidance
issued under former President Obama’s administration and the Department of Labor withdrew its guidance on transgender rights in the workplace. Along with that, the Supreme Court sent back to the court of appeals what many thought would be a seminal case on transgender rights, G.G. v. Gloucester County Public School Board
, without ruling on the merits.
Despite these setbacks, it is evident that recognition of transgender rights continues to take root in the fabric of our society and the issue of which bathroom people may use is still at the forefront of public facility access for transgender individuals. Naturally, now there’s an app for that.
Many people use the app Yelp to find good restaurants and other services in the neighborhood. Now Yelp is unveiling a new feature
aimed at helping members of the LGBTQ community. The company has announced that it will enable its app to help people locate gender neutral bathrooms available to the public. Like other features of the app, Yelp is asking businesses to provide the data on locations of gender neutral bathrooms for app users to search directly. Yelp defines a gender neutral bathroom as one that is available to anyone, regardless of gender, that has a locking, single stall. Yelp, by the way, also signed an amicus brief
in support of student, G.G., the plaintiff in the now famous school bathroom case, the transgender student who was denied access to the male bathroom at his school.
Appellate Court Issues Mixed Decision Regarding Sheriff’s Gang Affiliation And Social Media Policies
In a mixed decision, the Illinois Appellate Court First District recently found in International Brotherhood of Teamsters, Local 700 v. The Illinois Labor Relations Board, Local Panel, et al.
that while the Cook County Sheriff’s Office cannot impose a work rule that its employees disclose gang affiliations of friends and family members, it can implement and enforce a social media policy that prohibits employees from discrediting the Sheriff’s Office. The decision is somewhat surprising because courts often upheld safety and security policies such as the general order concerning gang affiliation as a matter of inherent managerial policy but generally scrutinize social media policies as overbroad and an infringement on protected activity. The result in International Brotherhood of Teamsters, Local 700
was the exact opposite of the current trend.
This case arose from a decision and order of the Illinois Labor Relations Board upholding two general orders issued by the Sheriff concerning gang affiliations and social media. The first general order prohibited employees from associating with anyone the employee knew or should have known is or was in a gang and required the employee to complete a disclosure form. The second general order set forth guidelines for acceptable conduct – on or off duty – related to employee use of social media. Teamsters claimed they issued a demand to bargain over the two general orders but the Sheriff never replied. Thereafter, Teamsters filed an unfair labor practice charge, initially claiming that both orders were unlawful unilateral changes to terms and conditions of employment without notice or the opportunity to bargain, though it later amended its position to maintain that only the Gang Order was a subject of mandatory bargaining. Teamsters additionally asserted in its unfair labor practice charge that the social media policy contained overbroad restrictions on employee use of social media.
Relying on Central City Education Association v. Illinois Educational Relations Board
, the seminal case that set forth the three-part test for determining whether a matter is subject to mandatory bargaining, the Administrative Law Judge found that the gang-affiliation problem was dire enough to allow the Sheriff to impose the order without mandatory bargaining. The Administrative Law Judge also cited the 1993 Illinois Streetgang Terrorism Omnibus Prevention Act
, which describes gangs as a “clear and present danger” as well as the ongoing violence in and around Chicago. Because the gang order fell under its inherent managerial authority, the Administrative Law Judge reasoned that the Sheriff did not have to negotiate over the gang order. On the other hand, the Administrative Law Judge found that the Sheriff’s social media policy was unlawfully overbroad because it gave the appearance that protected activity was prohibited and did not provide explicit limiting language.
On appeal, the Appellate Court reversed both of the Administrative Law Judge’s findings. In finding that the gang order violated the Illinois Labor Relations Act, the Appellate Court explained that although gang affiliation was an important concern, both the documentary and testimonial evidence showed gang affiliation was not an ongoing problem. The Appellate Court also found that the Sheriff should have bargained over the gang order because it triggered a change in working conditions, e.g., employees could be disciplined for failing to disclose any gang affiliation which was a substantial departure from prior general orders. In other words, the gang order was a mandatory subject, and as a result, the Sheriff’s refusal to bargain was found to violate the Illinois Public Labor Relations Act.
With respect to the Sheriff’s Office social media policy, the Appellate Court found that the social media policy did not violate the Illinois Public Labor Relations Act. In upholding the Sheriff’s social media policy, the Appellate Court relied on Lutheran Heritage Village-Livonia - NLRB
, a decision from the National Labor Relations Board that found an employer rule can be considered unlawful if employees would “reasonably construe the language to prohibit” or has actually been used to restrict protected rights, to find that the policy was not overbroad on its face. The Appellate Court explained that the mere possibility that employees could interpret the policy to prohibit protected activity was insufficient to establish a violation of the Illinois Public Labor Relations Act. Indeed, the Appellate Court noted that the Teamsters may be correct that employees could interpret the social media policy to prohibit protected activity, but the mere possibility that employees could interpret the policy that way is not enough to establish a violation. To that end, the Appellate Court essentially provided the Sheriff clearance to implement and enforce its social media policy forbidding employees conduct that discredits the department.
The Appellate Court’s decision signals a shift in the assessment of social media policies. The mere belief that protected activity can be obstructed by way of a workplace policy is now insufficient to show a violation of the Illinois Public Labor Relations Act. The decision also strikes at the very heart of an employer’s managerial prerogative because it frustrates an employers ability to unilaterally implement security and safety rules. Now, employers must be cognizant of whether such security and safety rules such as a gang affiliation order impose new opportunities for discipline because it may trigger a change in working conditions and violate the Illinois Public Labor Relations Act.
If you have any questions about this case or need assistance drafting social media policies as well as gang affiliation policies or similar safety related workplace rules, please contact us
Court Finds Letter Critical of Employer by Union President is Concerted Activity
What acts constitute concerted activity has been the subject of many court and labor board decisions, with varying interpretations. Just last week, in Moraine Valley Community College v. Illinois Educational Labor Relations Board
, the Illinois Appellate Court for the First District issued an important decision concerning speech that constitutes concerted activity that provides valuable guidance for higher education administrators. In that case, the Appellate Court upheld the Illinois Educational Labor Relations Board’s decision that found an adjunct plaintiff was improperly terminated by a community college for engaging in speech protected by the Illinois Educational Labor Relations Act
In Moraine Valley Community College
, an adjunct instructor and head of the adjunct faculty union at Moraine Valley Community College (“the College”) was fired and banned from campus because she wrote a letter critical of how the administration treated adjunct faculty. In her letter, which she sent to League of Innovation in the Community College
(“LICC”), the adjunct instructor identified grievances with the College, including treatment of adjuncts and that treatment’s impact on students. The adjunct instructor signed this letter as Moraine Valley Adjunct Faculty Organization’s president, and the letter was on the Organization’s letterhead. The letter also referenced Moraine Valley’s request to union leaders that they write letters to LICC supporting Moraine Valley’s reapplication to LICC’s board. In her letter, she also outlined why she did not support this reapplication, explaining that her lack of support stemmed from what she characterized as the College’s treatment of adjunct faculty as “‘a disposable resource’ and ‘a separate, lower class of people.’” Two days after sending her letter to LICC, the College fired the adjunct citing her letter as the core reason for her termination. In particular, the College asserted that the letter to LICC was “replete with misrepresentations and falsehoods” and was “disruptive and not consistent with the best interests of the College.” The adjunct instructor was also told that her future presence on campus would be treated as criminal trespass.
At the center of the parties’ dispute was whether the adjunct instructor’s letter constituted protected activity under the Act. The IELRB determined that the College violated the Act and committed an unfair labor practice because the letter was concerted activity and the College could not terminate her for writing the letter. Under the IELRB ruling, the College was required to reinstate the adjunct and provide her back pay with interest.
On appeal, the Appellate Court agreed with the IELRB finding that the letter qualified as a concerted activity because it discussed the issues experienced by the adjunct faculty as a group, not simply by the adjunct instructor as an individual. The Appellate Court found that a number of the matters raised in the letter related to grievances already filed and rejected or were those in dispute at the time, namely, surrounding the Affordable Care Act and adjunct faculty members’ reduction in hours/benefits. Nor was the letter merely a public venting of personal grievances, but rather was an attempt to shed light on the employment conditions experienced by the adjunct faculty members and to mobilize change by establishing the College’s lack of innovation in stifling the growth of the adjunct faculty. What’s more, the letter was written by a union official in furtherance of union’s collective activities, thereby demonstrating there was a genuine labor dispute between the parties. In particular, the letter referenced that adjunct faculty were faced with limited resources, below par pay and benefits, the disparate treatment as compared to the full-time faculty, and the statements made in the letter by the adjunct instructor regarding the fungibility of the adjunct faculty, all had a chilling effect on the union membership in terms of fearing their job security. In short, the Appellate Court confirmed that given the labor dispute between the union and the College, the adjunct instructor’s letter constituted “concerted” activity
that was protected by the Act.
This case is significant in that it reaffirms that employees do enjoy protection for speech derived from a labor dispute. In particular, the case reaffirms that protection under the Act is predicated on whether (1) the speech or communication clearly indicates the existence of a labor dispute with the employer; and (2) the critical statements are not maliciously untrue. When an employee publicly addresses collective grievances, concerns or criticisms on behalf of a union, such speech generally constitutes a matter of public concern and is concerted activity that prohibits an employer from taking adverse employment action.
Employers should always take a long hard look before disciplining an employee for statements that are made on behalf of a group of people. Depending on the content of those statements, that might trigger protection as concerted activity, which is protected by law. Additionally, as this decision shows, public sector employers should think twice before taking adverse employment actions against an employee merely because the particular speech is critical and unflattering, especially during a labor dispute. It also shows that when speech is a byproduct of a labor dispute, the Illinois Educational Labor Relations Board will most likely intercede in favor of employee rights.