Third Quarter 2014



In This Issue:

In the News

Non-Compete Issues

Variable Pay

Religious Discrimination

Dress Code

Litigation Update

Fair Labor Standards Act Judgments and Settlements

The Strangest Thing We’ve Heard of Late

Upcoming Events

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 - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

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

Previous Issues

In the News

Non-Compete Issues

The Wisconsin Supreme Court has agreed to hear a case about whether a non-compete agreement signed by an employee without consideration (some compensation in exchange for signing) is valid. In this case, a 20-year employee of Runzheimer International signed the agreement. The company offered nothing in exchange for signing, other than continued employment of course. Upon his departure from Runzheimer, an issue arose about whether the agreement was valid. See Runzheimer Intern. Ltd. v. Friedlen, No. 2013AP1392, 2014 WL 1465157 (Wis. Ct. App. Apr. 15, 2014), cert. granted, (Wis. June 12, 2014).

Employer take-away: Somewhat surprisingly, this issue is not entirely settled under Wisconsin law. If you are in the process of drafting, or updating, your non-compete agreements, consider offering a nominal sum in exchange for signing as a means of hedging your bet relative to the outcome of this pending case. On the other hand, deciding on the precise amount to offer is key – as a sum that is too low, or too high, may complicate the conversation. Contact Attorney Mark Goldstein at or 414-446-8800 if you have any questions about your current or proposed non-compete language.

Variable Pay

This has been a record year for variable pay programs. These programs tie compensation, or a portion of compensation, to certain job performance metrics – company or departmental profitability, new accounts, a completed project, or the like. It appears this trend will continue. According to an Aon Hewitt study: “91 percent of organizations currently offer variable pay programs and expect to spend 12.7 percent of payroll on variable pay for salaried exempt employees in 2015.”

Employer take-away: There has been so much discussion about variable pay models for public school teachers that perhaps we have overlooked the extent to which such programs have taken off in the private sector (up from 78 percent of employers, and 11.4 percent of payroll, less than 10 years ago). Contact Kris ( or 414-446-8800) if you have any questions about variable pay.

Religious Discrimination

The EEOC recently issued new “guidance” on religious garb and grooming. See this document and fact sheet from the EEOC on the subject. This will serve as the EEOC’s “default position” in prosecuting such cases (and deciding which cases to prosecute) and guide employers, courts, and others who assess this increasingly common, and complicated, issue.

But what precisely is the definition of a religion for EEO purposes? The EEOC has recently taken on United Health Programs of America, Inc. for mandating religious observance relative to a religion known as “Onionhead.” The EEOC’s position is that employees were required to participate in “group prayers, candle burning, and discussions of spiritual texts.” According to news accounts, however, “Onionhead” is not a religion but, rather, a wellness program (“a cartoon character used to peel layers for problem solving and conflict resolution skills”). The case is currently pending before the Eastern District of New York.

Dress Code

Honolulu’s police chief recently drew criticism for banning visible tattoos. One might think this relates to the unique role of police officers (as public service employees and authority figures). However, the issue in this case has more to do with the use of tattoos as an expression of Hawaii’s cultural heritage.

Employer take-away: What issues have you had with tattoos, piercings, spacers, etc.? What success have you had regulating them? Do “cover up” policies actually work – and especially with respect to tattoos on one’s neck or face? Please share your stories, positive and negative. Contact Kris ( or 414-446-8800) if you have any questions.

Litigation Update

Fair Labor Standards Act Judgments and Settlements

The Fair Labor Standards Act judgments and settlements keep pouring in, and the numbers are staggering:

  • In the last week of August, a Federal Appeals Court ruled that approximately 2,700 FedEx drivers are employees, not independent contractors. While FedEx has stated its intention to appeal the ruling, its exposure is enormous – including overtime pay, back pay, and changes to its business model going forward.
  • Earlier in August, LinkedIn agreed to pay more than $6 million in damages to over 350 employees relative to unpaid overtime. The settlement includes a “no retaliation” provision, precluding action by LinkedIn against the employees who made claims.
  • In June, Johnson Controls agreed to pay $2.8 million to over 1,400 former employees relative to issues involving vacation and final wage pay.
  • Also in June, Wisconsin-based Schneider Logistics, Inc. (a division of Schneider, the trucking company), agreed to pay $21 million to settle a claim brought by approximately 1,800 warehouse workers (“lumpers”) who claimed they were underpaid, denied overtime, and retaliated against when they complained. This is the second settlement for Schneider at the same warehouse complex, the prior lawsuit having settled for $4.7 million just last year.

Employer take-away: Issues relative to misclassification (as, for example, independent contractor v. employee, or exempt v. non-exempt), unpaid overtime, and calculation of final paychecks continue to plague companies large and small. As evidenced by this sampling of recent cases, your exposure can be great. Contact Attorney Mark Goldstein at or 414-446-8800 if you have any questions about independent contractor designations, white collar exemptions, overtime pay, vacation pay, or final paychecks.

The Strangest Things We’ve Heard of Late

San Diego cab drivers are protesting a “checklist” of criteria for cab licenses that includes, in addition to proof of insurance, good brakes, etc….body odor. The issue is at least threefold: (1) how is body odor measured; (2) how body odor is distinguished from odor emanating from the cab itself; and (3) whether body odor is a code word for discrimination against foreign cab drivers.

Employer take-away: Everyone has a cab story. Thinking of it from an employment law perspective, issues of body odor are, on the one hand, obvious; and, on the other, potentially walking a fine line with respect to national origin, possible disability, and other considerations.

Upcoming Events


Background Checks Mequon

Workforce Development Center


Employee Handbooks Madison

Wisconsin SHRM State Conference


Legal Update Racine

Racine County Workforce Development Center


Legal Update

Integrated Health Network of WI

For more information on upcoming events, click here.