Tag: Employees

The New Illinois Pregnancy Accommodation Act: What Employers Need to Know

The Illinois Pregnancy Accommodation Act (“IPAA”), which became a law on January 1, 2015, amended the Illinois Human Rights Act and heightened the duty of all Illinois employers to reasonably accommodate job applicants and employees affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth including probationary and part-time employees.

It is now a civil rights violation for Illinois employers to: (i) not make reasonable accommodations for any medical or common condition of an applicant or employee related to pregnancy or childbirth; (ii) deny employment opportunities or deny medical benefits to or take adverse action against an otherwise qualified job applicant or employee if the denial adverse action is based on the need of the employer to make reasonable accommodations to the known medical or common conditions related to the pregnancy or childbirth of the applicant or employee; (iii) require a job applicant or employee to accept an accommodation when she did not request and chooses not to accept one; (iv) require a job applicant or employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided; or (v) refuse to reinstate employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position with equivalent pay and benefits upon her signifying her attempt to return or when her need for reasonable accommodation ceases.

The IPAA sets forth an extensive list of possible accommodations for pregnant employees including (without limitation): more frequent or longer bathroom breaks; breaks for increased water intake and periodic rest; private non bathroom space for expressing breastmilk and breast feeding; feeding; assistance with manual labor; light duty; temporary transfer to a less strenuous or hazardous position; provision of an accessible worksite; acquisition or modification of equipment; job restructuring; part-time or modified work schedules; appropriate adjustment or modifications of examinations, training materials, or policies; reassignment to a vacant position; time off to recover from conditions related to childbirth; and leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth.  Prior to the IPAA, employees affected by pregnancy would not otherwise be entitled to many of the statutes list of possible accommodations.

The IPAA permits an employer to deny a request for pregnancy accommodations only where granting it would present an undue hardship.  To succeed with the undue hardship defense under the IPAA, an employer must demonstrate that the nature and cost of the accommodation, the overall financial resources and size of the employer, the type of operations the employer is engaged in, and the impact the accommodation would have upon overall operations are such that the accommodations substantially impacts the ordinary operations of the business.  Significantly, the IPAA provides for a rebuttable presumption that an accommodation will not impose an undue hardship if the employer provides or must provide a similar accommodation to non-pregnant employees otherwise entitled to an accommodation.

Similar to the Americans with Disability Act, the IPAA mandates that the employee and employer engage in an “interactive process”, which requires, at a minimum, that the employer and employee “engage in a timely, good faith, meaningful exchange to determine the effective reasonable accommodation.”

We help businesses navigate the complications and confusing interactive process to ensure compliance with the IPAA when dealing with employees affected by pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth.

If you have any questions in this area, please contact:

Mitchell S. Chaban at:

mchaban@lgattorneys.com or 312-368-0100.

Limits on Protection for Facebook Posts

Several months ago, we blogged about employee protections afforded by the National Labor Relations Board with respect to social media postings (Increased Focus on Employer Policies and Handbooks).  The board has been very active the past several years making determinations regarding whether employees’ work-related Facebook posts are the type of protected concerted activity afforded protection under section 7 of the National Labor Relations Act (NLRA). In most of the cases it has considered, the board has determined that employees’ work-related communications via social media were protected concerted activity subject to the protections of the NLRA.  In a recent decision, however, the board ruled in a case involving the type of social-media communications that are so inappropriate that they lost their protection.

Generally speaking, the NLRA protects non-governmental employees engaged in activities to influence change in the workplace (so called “protected concerted activity”) – even if those employees are not union members and the activity has no connection to union activity or a labor union.  Thus, the NLRA protects the rights of all private sector employees to join together, with or without a union, to improve their wages and working conditions.

In the recent case of Richmond District Neighborhood Center, the issue before the board was a Facebook “conversation” between two employees.  The two employees worked for a teen center in San Francisco.  At the end of the center’s 2012 summer program, the employer extended offers of employment to both employees for the 2012–2013 school year and the 2013 summer program. However, one of the employees was demoted due to a negative performance evaluation.

After receiving their offer letters in August 2012, the two employees engaged in a Facebook ‘conversation’ full of profanity.  The ‘conversation’ also included a former student participant in the teen program.  The two employees discussed their intent to be regularly absent from work, plan activities for the students without obtaining the employer’s authorization, play loud music and teach the student participants to spray graffiti. The employees’ exchange was visible to any person designated as a Facebook “friend” of either of the employees. The day after this exchange, another employee of the teen center sent screen shots of the Facebook exchange to management, and the employer rescinded both employees’ offers. The employees challenged their terminations.

The board concluded that “the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render the employees unfit for further service.” The board’s decision was based primarily on the type of the misconduct the employees advocated.

To discuss whether or not your employees’ communications via social media posts may be protected as a type of protected concerted activity under section 7 of the NLRA, please contact:

Jonathan M. Weis at:

jweis@lgattorneys.com or 312-368-0100

or

Mitchell S. Chaban at:

mchaban@lgattorneys.com or 312-368-0100

Increased Focus on Employer Policies and Handbooks

With the increasing prevalence of employees’ use of social and other electronic media, crafting appropriately narrow internal policies and employee handbook provisions to address the myriad issues that arise in connection with employees’ use of electronic media is vital.

It is widely accepted that employees should not have reasonable expectations of privacy when working on an employer’s computer since company computer systems are owned and/or provided by the company for the purpose of conducting company business. Many companies monitor employee e-mail and Internet activity, in part because employers are often liable for their employees’ actions. Even so, employers must be careful as they enforce their e-mail communications policies.

Generally speaking, the National Labor Relations Act (NLRA) protects non-governmental employees engaged in activities to influence change in the workplace (so called “protected concerted activity”) – even if those employees are not union members and the activity has no connection to union activity or a labor union. Thus, the NLRA protects the rights of all private sector employees to join together, with or without a union, to improve their wages and working conditions.

Over the past few years, the General Counsel of the NLRB has issued complaints against employers that have discriminatorily enforced otherwise valid communication policies. In one case, the NLRB issued a complaint against a distribution company that had in place a rule prohibiting all non-business e-mail communications. However, the employer failed to consistently enforce the rule, allowing non-business e-mail and only disciplining employees when they used e-mail for union solicitations. More recently, the NLRB found that an employer selectively enforced its electronic communications policy in a case where it terminated an employee who e-mailed a petition to the company’s Board of Directors. The petition sought development of a method for employees to directly submit workplace concerns. The evidence in this case showed, contrary to the policy, that the employer’s e-mail policy permitted reasonable personal use of the company’s e-mail system and that employees frequently used their computers for personal purposes. Thus, the employer’s claim that the employee had improperly used its e-mail proved to be a losing argument.

While these few examples of e-mail policy enforcement issues may appear to only apply to unionized companies, this issue may also affect non-unionized companies.

As many are aware, the NLRB has also dealt several blows to employers in recent years regarding employer social media policies and how such policies violated employees’ rights to “concerted activity.” In June of this year, however, in a ‘win’ for an employer, an administrative law judge (ALJ) considered the legality of a restaurant chain’s social media policy which provided that employees not post information regarding the company, their jobs or other employees which could lead to morale issues in the workplace or detrimentally affect the company’s business. The policy also urged employees to make clear that the views they post were the employee’s personal views and not the company’s and requested that employees put a disclaimer on their social media pages stating that the views expressed were the employee’s alone and not the views of the employer. The policy also stated that no employee could use any words, logos or other marks that would infringe upon the intellectual property rights of the company. The ALJ in this case found that the policy when read in its entirety did not forbid employees from engaging in rights protected by the NLRA, but only urged them to be considerate of and civil toward others when putting such items on the Internet. The ALJ also interpreted provisions of the rule precluding use of the company logo in a manner that infringed on the company’s intellectual property rights as simply protecting the company’s legal rights concerning its logo, and did not implicate the employees’ rights under the NLRA.

Workplace policies regarding non-disparagement and confidentiality have also recently come under attack. For example, an employee of Quicken Loans signed an employment contract with broad confidentiality and non-disparagement provisions wherein she agreed to hold “in the strictest of confidence” any “nonpublic information relating to or regarding the company’s business, personnel, operations or affairs.” She also agreed not to “publicly criticize, ridicule, disparage or defame the company or its products, services, policies, directors, officers, shareholders or employees” in “any written or oral statement or image” including emails or social media posting. After leaving Quicken Loans for a competitor, Quicken Loans sued its former employee for allegedly violating certain provisions of her employment contract. The employee filed charges with the NLRB, and the NLRB upheld an administrative law judge’s ruling that Quicken Loans’ confidentiality clause violated the NLRA by restricting employees from discussing compensation or job conditions with co-workers or union organizers. The NLRB also rescinded the non-disparagement provision finding that “within certain limits, employees are allowed to criticize their employer and its products” as part of their rights under the NLRA. Similarly, employer policies that prohibit employees from complaining to the media or requiring employees to obtain permission from management prior to speaking with reporters are unlikely to withstand legal scrutiny.

The prevalent use of technology in the workplace and increased scrutiny by the NLRB on all employees’ rights to engage in protected concerted activity dictates that every employer have policies in place which set forth appropriate and enforceable rules with respect to employees’ use of company’s computer systems, e-mail and the Internet. It is important to review technology and communication policies periodically, adapt the policies so they evolve as technology changes and consistently enforce the policies.

To discuss your business’s internal policies, employee handbook or employment agreements, please contact:

Jonathan M. Weis at: jweis@lgattorneys.com or 312-368-0100

or

Mitchell S. Chaban at: mchaban@lgattorneys.com or 312-368-0100

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