Second Quarter 2017

 

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In This Issue:

Quick Hits

Political Polarization and the Workplace

Regulatory Update

Are you Using the Correct Form I-9?

National Right-to-Work Law Introduced

Teen Worker Permit Potentially on the Chopping Block

"Comp Time" instead of Comp Pay?

Legal Update

Wellness Programs and Discrimination

Disability or Disruptive Behavior?

The High Cost of Independent Contractor Classification

The Old Ball Game

Sexual-Orientation Discrimination in the Courts

In the News

Every Kiss Begins with Kay

Links of Note

Hiring the Right Person

Healthy Competition

Organization Style

Strangest Thing

For the Lack of a Comma…

Dairy Farm Fitbit

Published or Quoted Elsewhere:

Timing Works Out Well for Goldstein

Wisconsin Law Journal

Concealed Carry Concerns

Ozaukee Press

Packing Heat: Local Businesses Torn on Concealed Carry Law

Fox Point Patch

Social Media and the Workplace

(SBDC Front Page)

Are Unpaid Internships Legal?

(Dime Crunch)

Loose Lips Sink Ships – Things That Can Get Educators in Legal Hot Water!

(Teachers.Net Gazette)

The Focus on Misclassification

(SBDC Front Page)

Hiring in the New Economy

(SBDC Front Page)

Understanding and Bridging
the Generational Gap>

(WORK Spring, 2009)

What is the Role of an
Attorney on the Board?

(Compasspoint Board Café - February 28, 2008)

Also published in Blueavocado.org - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

(Wisconsin Lawyer - Vol. 81,
No. 2, February 2008)

Previous Issues

Quick Hits

Political Polarization and the Workplace

A survey by Betterworks, a performance management software company, suggests 29% of respondents have been less productive since the 2016 presidential election as a result of a tense political climate and continued rise in workplace incivility. One example is the University of Wisconsin-La Crosse police dispatcher who was fired, and quickly rehired, after making various politically charged remarks. Is a politics-free work zone impossible? What have you experienced, and how have you addressed it?

Regulatory Update

Are you Using the Correct Form I-9?

As of January 22, 2017, employers must use an updated version of Form I-9 (11/14/2016). Changes include: an interactive PDF "smart form" with drop-down menus, more detailed instructions, a revised layout (to address issues with the old form), and a reduction in documentation required for foreign nationals authorized to work in the US. A PDF of the Handbook for Employers, as well as the new form and other tools, can be found on the US Citizenship and Immigration Services (USCIS) webpage at Employment Eligibility Verification.

National Right-to-Work Law Introduced

Congressmen Steve King (Iowa) and Joe Wilson (South Carolina) have introduced national right-to-work legislation. While opinions on right-to-work laws remain polarizing, over half of the states have now implemented them.

Wisconsin’s right-to-work law has faced some recent scrutiny. In December 2016, part of the law was ruled unconstitutional, and the National Labor Review Board (NLRB) recently ruled that another part of the law, relative to deducting union fees from paychecks, is preempted by federal labor law. In short, this is an issue with many facets—stay tuned.

Teen Worker Permit Potentially on Chopping Block

With summer fast approaching, the employment of teens is on the rise. A Wisconsin State Senate Committee recently voted to approve elimination of the work permit requirement for 16- and 17-year-olds. On one hand, the elimination of work permits may streamline the hiring process. On the other, presumably there is some value to parental knowledge and buy-in relative to their teens’ employment. Watch this space for further information on the state of the proposed legislation.

"Comp Time" instead of Overtime Pay?

H.R. 1180, proposed by Representative Martha Roby in February 2017, seeks to "amend the Fair Labor Standards Act of 1938 to provide compensatory time for employees in the private sector." This would permit employers to provide the option of compensatory time (at a rate of time and one half) in lieu of overtime pay. The bill contains additional provisions, including payout of compensatory time at termination and a maximum accrual amount. Stay tuned for further developments.

Legal Update

Wellness Programs and Discrimination

According to the EEOC, a wellness program implemented by Orion Energy Systems (Manitowoc, Wisconsin) violated the Americans with Disabilities Act (ADA) by including disability-related inquiries. The program required employees to disclose their medical histories and participate in specific exercises unrelated to their job duties. After Wendy Schobert refused to participate, she was required to reimburse her entire health insurance premium and then was fired just a few weeks later. Ultimately, the case settled with a payment of $100,000 from Orion to Schobert. In addition to the payment, the company agreed to abandon such wellness programs and retaliatory practices, to develop a grievance procedure relative to the wellness program, and to train employees on retaliation and the ADA.

Business Takeaway: This case serves as a reminder that even though implementing a wellness program is legal (and, in many senses, encouraged), businesses must still comply with related laws—in this particular case, Title VII and the ADA. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for strategies on implementing your own wellness program.

Disability or Disruptive Behavior?

A recent appeals decision, Wisconsin Bell v. LIRC, speaks to the issue of the fine line between mental health issues and odd or disruptive workplace behavior. Charles Carlson filed disability discrimination claims against Wisconsin Bell after the company suspended and later fired him. Wisconsin Bell did not believe Carlson’s reasons for his conduct were medical (bipolar disorder), addressing it as simply disruptive workplace behavior. The court of appeals disagreed, finding against the company and ordering reinstatement with back pay.

Business Takeaway: Keep in mind that employers must reasonably accommodate employee disabilities—unless the accommodation poses an undue hardship for the employer. If a business does not reasonably accommodate and cannot prove undue hardship, damages may include back pay, reinstatement, and attorneys’ fees. Contact Adam at 414-446-8800 or adam@goldsteinsc.com with questions on reasonable accommodation or the Wisconsin Fair Employment Act (WFEA).

The High Cost of Independent Contractor Classification

American Family Insurance has historically classified agents as independent contractors. Doing so benefits the company in several ways, including, for example, minimizing FICA withholdings and avoiding the federal law that protects retirement benefits for employees. A U.S. district court jury recently decided against this classification. One factor influencing the decision was that American Family requires its agents to sell only its policies. American Family now awaits the judge’s final decision on whether to implement the jury verdict. The company’s exposure could reach as much as $1 billion in damages and injunctive relief.

Business Takeaway: Yet another case of a well-established, sophisticated employer misclassifying employees—and the high price for doing so. For a worker to be classified as an independent contractor, he or she must satisfy various requirements relative to Right of Control and Economic Realities tests, in addition to state law requirements. Contact Michael at 414-446-8800 or michael@goldsteinsc.com for a guide on classifying employees and determining when individuals truly are independent contractors.

The Old Ball Game

A class action lawsuit against Major League Baseball (MLB) targets the compensation of thousands of minor league players. Many of the players do not earn minimum wage, and none of the players are paid for spring training, which typically calls for 50- to 60-hour work weeks. One five-year player quit despite making it up to Triple-A, no longer able to continue on a sub-$15,000/year salary. The MLB has argued that minor leaguers are "short-term, seasonal apprentices," meaning the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) do not apply.

Business Takeaway: Any business—regardless of size or sophistication—can run into FLSA issues. This kind of classification issue can have major consequences for the business. Lawsuits can snowball into class-actions and penalties may include three years’ wages and double damages. While this lawsuit began three years ago, there is still no final decision—and no changes to minor league compensation in the interim. Does your business rely on any short-term or seasonal employees or apprentices?

Sexual-Orientation Discrimination in the Courts

The 7th Circuit Court of Appeals decision in Hively v. Ivy Tech Community College of Indiana is the first federal decision that finds sexual-orientation discrimination to be a form of Title VII sex discrimination. Kimberly Hively, a part-time adjunct professor at Ivy Tech Community College, claimed that she was denied full-time status (2009-2014) and that the school did not renew her part-time contract because of her sexual orientation. The relevant section of Title VII reads:

(a) Employer practices
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Per the court’s decision, sexual-orientation discrimination is to be included in these employer protections, as courts "have failed to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination."

Business Takeaway: While this has been the law in Wisconsin and other states for some time, the issue remains unsettled under federal law. The 7th Circuit has appellate jurisdiction over Wisconsin, Illinois, and Indiana, so this decision is binding precedent in these states. Sexual orientation relative to the workplace has been a controversial topic for years. Time will tell whether the other circuits follow suit or rule differently—which could prompt Supreme Court review. Contact Mark at 414-446-8800 or mark@goldsteinsc.com with questions on Title VII or concerns relative to workplace discrimination.

In the News

Every Kiss Begins with Kay

A variety of high-profile companies have been in the news for sex discrimination as of late. For instance, companies including Sterling Jewelers, the parent company of Kay Jewelers and Jared the Galleria of Jewelry, and Uber face allegations of sex discrimination and various instances of retaliation against those who filed complaints. Miki Agrawal allegedly founded Thinx, a feminine hygiene product company, with feminist ideals and a focus on providing important work opportunities for women in mind. However, recent claims against the company include sexual harassment, substandard pay and benefits for women, and alarming working conditions. Most significantly, Fox News faces new sexual harassment claims (including from Diana Falzone) and  new racial discrimination claims after the dismissals of Roger Ailes, Bill O’Reilly, and Bill Shine (all related to sexual harassment).

This behavior has obvious negative consequences, including expensive settlements and bad publicity. A survey in the tech industry reveals workers are leaving their jobs as a result of unfairness and mistreatment. Recent reports show that Uber employees are leaving or looking to leave the company—with one article even suggesting a link between an Uber engineer’s suicide and his experience at Uber. Thinx has lost at least ten of its 35 employees since January 2017.

Business Takeaway:These latest stories demonstrate that the same issues plaguing well-established companies also arise in new and evolving businesses and industries. Getting culture right is critical. Contact Julia at 414-446-8800 or julia@goldsteinsc.com with questions regarding company policies, employee handbooks, and grievance procedures.

Links of Note

Hiring the Right Person

While traditional candidate search and hiring procedures continue to fall short, proponents of unconventional hiring techniques, including Google, are refocusing their efforts—letting go of some "new age" techniques they championed just a few years back. In order to identify the top candidate, Adam Bryant offers some creative hiring techniques that engage candidates in new and different ways.

Healthy Competition

A recent study by Coren Apicella and Johanna Mollerstrom set out to examine why women shy away from competition. Findings imply that women are just as competitive as men but prefer to compete against their own past performance (rather than others’). The full study, to be published this month, promises a variety of additional thoughts on gender issues in the workplace.

Organization Style

Organizational structure is an integral part of a business’s identity. Former president of Microsoft Windows Steven Sinofsky offers an in-depth look at functional versus business units, the pro’s and con’s of each, and how organizational structure can affect business.  

Strangest Thing

For the Lack of a Comma…

The Oxford comma. Such a small thing, yet the object of so much debate. (For those who are not familiar with the punctuation mark, it is the comma that follows the second-to-last item in a list of three or more items and is followed by 'and' or 'or.') Orthography enthusiasts have long debated its merits — some insisting it is needed for clarity while others arguing it is unnecessary. Due to a recent appeals case, people everywhere may take this argument more seriously. The following Maine statute, relative to overtime exemption rules, may result in an estimated $10 million payout:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.

The lack of clarity comes from the phrase "packing for shipment or distribution of." Absent an Oxford comma, this could be interpreted to mean "packing for shipment or packing for distribution." The truck drivers involved in the lawsuit distribute perishable foods but do not pack them for distribution. The appeals court reversed the lower court decision, citing the uncertainty of the statute’s meaning. Thus, proponents of the Oxford comma have been vindicated. For now.

Dairy Farm Fitbit

Gary Lake, owner of a small dairy farm in Colorado, has used technology in a new and interesting way to gain an advantage in his industry. He calls it "a Fitbit for cows." By using small, Bluetooth-enabled ear tags, Lake can store important information, such as vaccination history, and monitor other data on the cows, including current location and heart rate. This technology allows easy access to each cow’s data (e.g., for potential buyers) and enables specific cows to be located quickly. It also provides a simple method to track long-term data to improve practices and profits. No suggestion of mandatory Fitbits for employees just yet.

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