Category: Labor and Employment

New Occupational Safety and Health Requirements in 2015

Law Repeals Current Requirements and Imposes New Ones

By Joshua Herman

joshua.herman@mhtlaw.com

Effective January 1, 2015, the new Occupational Safety and Health Act (the “Act” or “OSHA”) becomes effective pursuant to Public Act 98-874, repealing the Safety Inspection and Education Act and the Health and Safety Act.  The new law establishes federal occupational safety and health standards as default requirements and it applies to every public employer and its employees.  While the Act permits the Illinois Department of Labor to adopt restrictions even more stringent than federal law requires, it also permits the Department to allow temporary and permanent variances from the Act upon request.

Generally, the Act requires a public employer to “provide reasonable protection to the lives, health, and safety of its employees” and to provide “each of its employees employment and a workplace which are free from recognized hazards that cause or are likely to cause death or serious physical harm.”  The Act requires the Director of Labor to adopt rules requiring public employers to keep accurate records and make reports of “work-related deaths, injuries, and illnesses” as well as maintain records of employee exposure to “potentially toxic material or harmful physical agents.”

Employers should review their workplace notices because the Act requires public employers to inform their employees of their protections and obligations under the new Act. Because these notices must include applicable standards or rules the Department of Labor adopts under this Act, the Department will likely provide updated notices soon. Public employers must also provide employees “with information regarding hazards in the workplace, including information about suitable precautions, relevant symptoms, and emergency treatment.”

An employee who believes a violation of the Act has occurred may request an inspection by the Director of Labor, the enforcer of the Act.  The Director may issue citations for violations, which are punishable by civil penalties (up to $10,000.00 per violation) and criminal penalties (ranging from a Class B misdemeanor to a Class 4 felony).  A public employer or its representative may contest a citation or notice of violation by filing a request for hearing with the Director.

At a minimum, public employers should review their workplace policies, potential safety and health risks facing employees, and revise workplace notices to comply with the Act.

 

Ban the Box

New Law Prohibits Asking About Job Applicant’s Criminal History

By Kateah M. McMasters

Beginning January 1, 2015, the Job Opportunities for Qualified Applicants Act (the “Act”), P.A. 98-774, prohibits employers from asking potential employees to “check a box” or to otherwise provide detailed information about his or her criminal history on a job application.
The General Assembly’s purpose in passing the Act is “to do more to give Illinois employers access to the broadest pool of qualified applicants possible, protect the civil rights of those seeking employment, and ensure that all qualified applicants are properly considered for employment opportunities and are not pre-screened or denied an employment opportunity unnecessarily or unjustly.”
Despite the Act’s prohibition, employers may notify applicants in writing that certain offenses will disqualify the applicant from ultimately securing employment due to Federal law, State law, or the employer’s policy. Further, the Act does permit employers to inquire about an applicant’s criminal history if the applicant is determined to be qualified for the position and selected for an interview or, if there is no interview, until after a conditional offer of employment has been made.
Importantly, the Act does not apply to positions where (i) an employer is required by federal or state law to exclude an applicant with certain criminal convictions; (ii) a standard fidelity bond or similar bond is required and an applicant would be disqualified from obtaining a bond because of one or more specific criminal convictions; and (iii) individuals are licensed under the Emergency Medical Services (EMS) Systems Act.
The Act does not provide applicants a private cause of action; instead, the Department of Labor enforces the Act. An employer’s first violation of the Act will result in a written warning giving the employer 30 days to remedy the violation. If the violation is not remedied within 30 days or a second violation occurs, the employer will be subject to a civil penalty of up to $500. If the first violation is not remedied within 60 days or a third violation occurs, the employer will be subject to a civil penalty of up to $1,500. A fourth or subsequent violation, and any violation persisting for more than 90 days, is subject to a civil penalty of up to $1,500 for every 30 days of noncompliance.
It is important to note the Act defines an “employer” as “any person or private entity that has 15 or more employees in the current or preceding calendar year, and any agent of such an entity or person.” It appears from the plain language of the Act that it does not apply to public bodies such as school districts and municipalities. However, the Department of Labor (DOL) has not provided a definition of the terms “person” and “private entity,” thus it is unclear whether the Act does in fact apply to public bodies. Until the DOL provides clarification, public bodies should consult with legal counsel to ensure their hiring process conforms with the Act’s requirements.

New Law for Pregnant Employees and Working Mothers

Illinois Human Rights Act Amended to Increase Pregnancy-Related Protection

By Kateah M. McMasters

kateah.mcmasters@mhtlaw.com

Effective January 1, 2015, a recent amendment to the Illinois Human Rights Act (the “Act”) adds pregnancy to the list of characteristics protected from discrimination.  “Pregnancy” includes pregnancy, childbirth, and conditions related to pregnancy or childbirth, expanding the Act to apply to pregnancy, childbirth, and postpartum conditions.

The Act currently prohibits employers from refusing to hire, promote, renew employment, discharge, or discipline employees on the basis of pregnancy.  The amended Act will also prohibit employers from denying “reasonable accommodations” to employees (including part-time, full-time, or probationary employees) and job applicants that are new or expectant mothers.  The Act requires employers provide pregnant employees the already-familiar “reasonable accommodation”, which requires employers to make reasonable modifications or adjustments to the job application process, the work environment, or a position to enable “an applicant or employee affected by pregnancy . . . to be considered for the position . . . or to perform the essential functions of that position.”  The amended Act provides a non-exhaustive list of typical accommodations, which includes: more frequent or longer bathroom breaks, providing private non-bathroom space for expressing breast milk, assistance with manual labor, light-duty, job restructuring, and modified work schedules.

Employers must participate in a timely, good faith and meaningful exchange with an employee in order to evaluate and implement reasonable accommodations.  An employer cannot force an employee to accept a reasonable accommodation or to take leave if another reasonable accommodation can be provided.  Additionally, employers are not required to create new or additional employment opportunities to accommodate pregnancy, unless the employer would do so for other employees who need accommodations.

Despite the general prohibitions contained in the Act, employers are allowed to require medical certification for the requested accommodation(s) but they may only require the following information: (i) the medical reason for the accommodation, (ii) a description of the accommodation, (iii) the date the accommodation became medically necessary, and (iv) the approximate time the accommodation will be required.

An employer may also refuse to provide accommodations if such accommodations would impose an “undue hardship” on the ordinary operation of business.  An accommodation causes “undue hardship” when it is “prohibitively expensive or disruptive.”  To determine whether an accommodation constitutes an undue hardship, the following factors will be considered:

  • the nature and cost of the accommodation;
  • the financial resources of the facility, the number of employees at the facility, and the financial impact on the operation of the facility;
  • the financial resources of the employer, the size of the business, and the number, type and location of the facilities; and
  • the composition, structure, and functions of the employer.

The employer bears the burden of proving a requested accommodation constitutes an undue hardship. Further, the fact an employer has provided or would be required to provide a similar accommodation to a similarly situated employee creates a presumption that an accommodation is not an undue hardship.

As a final matter, the Act requires employers to post a notice of the employee’s rights prepared by the Illinois Department of Human Rights in a conspicuous location, as well as include such rights in an employee handbook.

While the amendments aim to increase the protections afforded to pregnant employees and new working mothers, the Act does not require employers to take extraordinary measures to accommodate employees.  The key to the new law is reasonableness, and there are numerous ways in which an employer can accommodate new and expectant mothers with minimal workplace disruption.  In light of the changes to the Act, employers should evaluate whether any employee requires reasonable accommodation and begin a dialogue regarding the provision of the same.

 

Rule Barring Former Public Employee Lawsuits

Court Rules Former Public Employees Have Only Six Months To Bring Suit For Backpay

By Joshua D. Herman

joshua.herman@mhtlaw.com

Plaintiffs are required to bring an action enforcing their legal rights within a limited time after they are injured.  A statute of limitations typically establishes the maximum time after an injury that a suit can be filed. Failure to bring a lawsuit within this period usually results in the lawsuit’s dismissal. The Illinois Local Governmental and Governmental Employees Tort Immunity Act requires that most lawsuits against a public body be brought within a year of injury. However, a recent court decision held that suits against a public body by former employees must be brought within six months of their termination.

Recently, the Illinois Appellate Court upheld the dismissal of a former public employee’s suit seeking backpay because the complaint was not filed within six months of the date she resigned, despite the fact that the Tort Immunity Act would have permitted her to bring suit up to five months later. The court upheld the dismissal pursuant to the laches doctrine, which is an equitable defense that prohibits a plaintiff from asserting a claim when an unreasonable delay in doing so prejudices the other party.

Illinois courts have established a rule regarding the application of laches to public sector employee claims seeking reinstatement or backpay. The rule is that a delay of longer than six months from the date of termination to the filing of suit is per se unreasonable and will justify dismissal on the ground of laches if: (a) the plaintiff can show no reasonable excuse for the delay; and (b) the employer would suffer prejudice by having to pay both a replacement worker’s salary and a successful plaintiff’s back wages during the period of delay.  Courts have held that a public sector employee’s delay in bringing suit for reinstatement or backpay inherently prejudices the public because of the duplicative cost the public body who has already replaced the former employee will suffer if the plaintiff prevails.

Generally, the shorter a time in which a plaintiff may bring a suit, the better protected against liability a public body is. While there are few cases addressing this rule of laches, this recent decision suggests that it could become a more prominent defense in the future.

To better take advantage of this rule restricting former employees from bringing suit more than six months after their termination, public bodies should actively take some precautions where feasible. First, they should clarify when the employee’s last day of employment occurred. Doing so will help to determine exactly when the six-month clock starts to run. Second, a public body should clearly identify any employee hired to replace the former employee as a “replacement,” which will help demonstrate the prejudice that will be caused by the plaintiff’s delay in the event that the plaintiff prevails. Finally, the public body should also consider and document any other prejudice that it suffered, such as having considered and acted upon promotion lists or job applications.

While the scope of this rule is relatively narrow (limited to former employees seeking backpay or reinstatement) and it has not yet become widely used, the six-month rule provides public bodies another tool to combat uncertainty and prevent former employees from burdening the public through costly litigation after their employment has ended.

 

Discipline Can Be Subject to FOIA

Evaluating performance instead of discipline may avoid disclosure

By Joshua D. Herman

FOIA requests often seek employee discipline records, which can contain sensitive information for both the employee and the employer. The public disclosure of these records is primarily governed by two laws: the Freedom of Information Act (“FOIA”) and the Personnel Records Review Act (“PRRA”). Together, courts have interpreted these Acts to require disclosure of disciplinary records (including investigatory notes, letters of reprimand, etc.) if they are responsive to a FOIA request and not otherwise exempt.

Employers logically keep discipline records in the employee’s personnel file and have relied on FOIA’s personnel file exemption to deny such requests; thus, it was a surprise when the court in Watkins v. McCarthy held such records were not exempt under FOIA just because they were in a personnel file.  Further complicating matters, FOIA was recently amended to remove the personnel file exemption altogether.

Governmental bodies are left to argue FOIA’s other exemptions apply to records of discipline, namely:  7(1)(b) (private information), 7(1)(c)(personal information constituting an unwarranted invasion of personal privacy),   7(1)(f)(preliminary drafts, notes, etc. expressing opinions), and 7(1)(a) (disclosure prohibited by other law).  However, these attempts have had little success.

For example, 7(1)(b) supports redacting private information in a record (e.g., a social security number), but does not exempt the entire record.  Courts have held 7(1)(c) does not exempt discipline records arising from an employee’s work because it is not personal business.  Instead, the public’s interest in the performance of the employee’s public duties means disclosure is not an “unwarranted invasion of personal privacy”.  Consequently, Watkins v. McCarthy held that while these exemptions may permit minor redaction (e.g., the employee’s date of birth or social security number), the majority of records were not exempt.

The court in Watkins did recognize related investigation documents could be exempt as preliminary drafts pursuant to 7(1)(f), but it still required that the records be confidentially turned over to it to determine if the exemption applied. Ultimately, the court permitted the withholding of some information, but ordered production of the remaining records.

Most surprising, the Watkins court rejected 7(1)(a) entirely, reading the PRRA to require (rather than prohibit) disclosure of disciplinary records responsive to a FOIA Request.  Further Watkins held the PRRA’s requirement that employers remove disciplinary records more than four years old prior to disclosure may not apply if the disclosure is ordered pursuant to a FOIA action.  Thus, in that case, the court held that disciplinary records related to the performance of public duties going back at least four years (if not more) were subject to disclosure.

Despite the foregoing, please remember, the PRRA still requires employers provide the affected employee written notice of the impending disclosure on or before the date of disclosure.

Evaluating Performance Rather Than Documenting Discipline

At the same time the personnel file exemption was removed from FOIA, the PRRA was amended to prohibit disclosure of “performance evaluations” in response to a FOIA request.  Unfortunately, the term “performance evaluation” is not defined under either the PRRA or FOIA.  Some records of discipline may therefore qualify as a “performance evaluation” under the PRRA amendment, but no court has considered such a possibility.  Consequently, relying on this possibility may be a risk because the PRRA provision “requiring” disclosure of disciplinary records still exists.  Thus, governmental employers concerned that their disciplinary records might not be considered “performance evaluations” may choose to be proactive and tailor future records to more clearly qualify as exempt under the PRRA.

Such a practice should meet the requirements of any applicable collective bargaining agreement.  At a minimum, the evaluation should describe the poor performance of the employee (for which she/he would otherwise receive a letter of discipline), evaluate that performance, and state the corrective actions the employee should follow.  Not only may this permit governmental employers to better protect employee records from unnecessary disclosure, it also provides constructive feedback to the employee.

In conclusion, disciplinary records may be discoverable pursuant to FOIA, but performance evaluations are not.  Consequently, governmental employers may wish to consider evaluating performance as an alternative to meting out conclusory discipline to avoid disclosing their employees’ personnel records and to potentially foster more effective employee performance.  However, as noted above, there is no clear distinction between what constitutes a disciplinary record and performance evaluation.   Consequently, there is no guarantee that structuring a disciplinary action as a performance evaluation will prevent disclosure if denial of a FOIA request is appealed.

Unanticipated Consequences of Talking to the Media

Recent case illustrates need for caution

By: Patrick A. Murphey

patrick.murphey@mhtlaw.com

The Illinois Public Labor Relations Act provides it is an unfair labor practice to interfere with, restrain or coerce public employees in exercises of their rights under that Act.  5 ILCS 315/10(a)(1).

Recently, in New Lenox Fire Protection District, 28 Public Employee Reports Illinois 35 (7/20/11), the Employer was enjoined to cease and desist coercing its employees based upon a local newspaper report on a dispute between the District and the Union representing the District’s part-time firefighters.  The District’s Board of Trustees contracted with an outside provider to staff its fire service, eliminating its part time firefighter program shortly after the Union was certified.  Some of the part time firefighters also participated as “paid on call volunteer” firefighters, who continued to be used to supplement the contract fire service.  To protest the reorganization eliminating the part time service, the Union organized a demonstration at a Board meeting, showing up with a giant inflatable rat, and picket signs protesting the elimination of the part time fire service by contracting.

A local newspaper reporter covered the demonstration, and wrote an article which attributed several statements to the President of the Board of Trustees, including a contested statement which the Union asserted as a threat, to wit: “that the FPD would not start using paid on call firefighters again until the issue is resolved.”  Despite evidence the reporter did not understand the distinction between part time employees and paid on call volunteers, the ILRB held the statements resulted in a threat because the Board President allegedly failed to clarify her question or correct her mistake.  Ignoring the law, which provides trustees have no authority to act on behalf of the District in their individual capacity, the ILRB looked solely at the “effect” of the published statements on the paid on call firefighters to find it was an unlawful threat, to be attributed to the public employer, subject to a broadly worded “cease and desist” order.

The case illustrates several cautionary points members of public bodies need to consider in any statements to media representatives concerning any labor dispute.  First, if you agree to discuss an ongoing labor problem with a news representative, if possible, do so only on background, not for attribution, and make clear that you are not authorized to speak on behalf of the public body, and comment only as a private citizen.  Second, where it is necessary to communicate the Employer’s position through the media to insure another side is presented to the public, respond only from a prepared statement, and do not go “off script”.  Such prepared statement needs to be vetted to insure nothing stated therein constitutes any unlawful threat of adverse action, or promise of benefit, to employees involved in the labor dispute.  The middle of a labor dispute is not the time to shoot from the hip or to make off-the-cuff remarks.

Drafting a Social Networking Policy

Issues for districts considering whether and how to regulate employees’ electronic communications

By Joshua D. Herman

joshua.herman@mhtlaw.com

Social networking platforms and personal technology devices provide unique opportunities to educate and interact in the modern age. Unchecked, the same technology can also lend itself to unprofessional behavior by employees and the publication or exposure of records and information to the public that could subject the district or its employees to liability.

Most districts considering a social networking policy are concerned with preventing misuse of district resources and preventing inappropriate communications by employees.  In drafting a social networking policy, a district may want to consider starting with the new Illinois Association of School Boards’ PRESS policy 5:125. This policy attempts to establish the boundaries of professional behavior by district employees without going astray of the First Amendment. Depending on your district’s goals, you may find that the PRESS policy goes too far, or not far enough.  Regardless of what position your district takes, the following matters should be considered when drafting a social networking policy.

Ethical Conduct

A district should consider how to help ensure district employees do not violate their legal and ethical obligations when using social networks or personal technology. One way is to require district-related communications be open and transparent, as well as accessible to relevant district employees, including supervisors and administrators.  Additionally, noting within the policy that the district may search for and review any social networking or other electronic posts to ensure compliance with the policy may help to prevent inappropriate conduct by employees.

Types of Communications Allowed

A district might also consider requiring employees to use only district-supported technology for district- related communications (district email, homework forums, etc.). This restriction should help to avoid misuse of district resources while giving the district greater opportunity for investigation and review if any issues arise. Further, restricting employee communication with students to only district-supported technology should greatly reduce the potential for unprofessional or peer-like interactions to occur. However, some districts do not have such technology and others may allow or even encourage employees to engage students using other common methods of communication. Districts should consider whether and when an employee may conduct district business outside of district-supported technology and explicitly address these exceptions.

Private Contact Information

To prevent private, personal, and peer-like communications between employees and students, a district may also want to consider prohibiting employees from providing their private contact information, such as email and personal phone numbers, to students. Such a provision would likely require specific exceptions because, for example, traveling sports and competitive teams often benefit from the quick communication allowed by mobile phones. If a district authorizes such communications with private devices, a policy may require prior approval by administration before private contact information is shared with a student. A policy may also require that a copy of the information given to the student is given to both the employee’s supervisor and the student’s parent, with an explanation of why the information was shared, as well as when and in what circumstances that form of contact will be used.

Responsibility For Publicizing Information

While a district cannot prevent an employee from using social networks, it can notify employees that they are responsible for what they post. Consequently, a district should consider explicitly stating within the policy that employees who use social networks are responsible for the content and consequences of their communications. A social networking policy may make clear that it is the employee’s obligation to read and understand the terms of use for each forum used. A social networking policy should also make clear that employees shall not post information that would violate student records laws or privacy concerns, or divulge other confidential district information.

Professional v. Peer

Usually, the primary purpose of a social networking policy is to avoid an appearance of impropriety by district employees.  To this end, many districts consider restricting social networking and personal technology use during the school day.

A district may also consider prohibiting a direct social networking relationship with current students (such as “friending”), with some exceptions. A total ban would likely violate the First Amendment, as the state of Missouri recently discovered when it recently passed a law stating: “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” In August 2011, a circuit court judge issued an injunction, preventing the new law from going into effect because its restriction was so sweeping that it would have a chilling effect on speech. In addition to potentially violating the law, a total ban might also have the unintended effect of preventing a district employee from “friending” their own child or other relative, church youth group member, etc. Consequently, any limitation on social networking interaction must be carefully crafted.

Disclaimer

Although the district has an interest in providing a framework for employee behavior in the public arena, the First Amendment prevents the district from completely banning an employee’s use of social networking sites. However, districts need not become associated with every public word posted by their employees. Thus, many districts require social networking employees to provide a disclaimer.  This provision would require district employees who, through their use of social media, refer to the district or may be identified as a district employee, to provide a disclaimer that any opinions are those of the individual and are neither endorsed by the district nor representative of the district’s views or policies.

Bargaining

Any policy a district does choose to implement regarding employee use of social networking and personal technology will likely touch upon, if not change, the terms and conditions of employment; therefore, such a policy may have to be bargained.  A district may avoid issues at bargaining by seeking input from employees who regularly use social networking prior to the policy drafting stage.

Conclusion

A district implementing a social networking policy can avoid legal missteps by remembering throughout the process that the policy is not meant to control all on and off campus communications, but to ensure professional relationships between district employees, students, and their parents.