Fourth Quarter 2011



In This Issue:

Concealed Carry FAQ's

Legislative &
Regulatory Update

Arrest/Conviction Discrimination

Protecting Jobs From Government Interference Act (H.R. 2587)

Parental Bereavement Act of 2011 (S. 1358)

Important Reminders

Employee Rights Notice Posting

Concealed Carry

Enforcement Actions Continue to Rise

Social Media as "Protected Concerted Activity"

Litigation Update

Recent Verdicts and Settlements


The Cost of Disengaged Workforce

Web Surfing at Work is Productive Activity

Published or Quoted Elsewhere:

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

Legislative & Regulatory Update

  • Arrest/Conviction Discrimination. There have been two significant developments in this area and, interestingly, they point in opposite directions.
    • At the State level, bills currently pending before the State Senate and Assembly (2011 S.B. 207, 2011 A.B. 286) would permit an employer to refuse employment to a convicted felon, no matter the felony and no matter the relationship, if any, between the felony and the potential job. If this initiative becomes law, it would mark an almost complete reversal of current law. Another bill currently pending before the State Senate (2011 S.B. 86) would permit an educational agency (defined to include schools, residential care facilities for children, or an entity under contract with a school to provide programs) to refuse to employ or to terminate from employment anyone with an unpardoned felony. If this bill becomes law, it would create an explicit carve-out to the current law.
    • At the same time, Milwaukee County supervisors recently voted to remove all questions regarding prior convictions and pending criminal charges from the initial job application for Milwaukee County employment. County administrators can still ask an applicant about his or her criminal record, however supervisors felt that the question might dissuade applicants with criminal records or cause them to be unfairly ruled out for employment.
  • Protecting Jobs From Government Interference Act (H.R. 2587). This bill, recently passed by the House of Representatives and now pending before the U.S. Senate, would remove one of the National Labor Relations Board’s most severe enforcement tools – ruling that an employer may not close a facility or relocate or transfer work. This bill is proposed in reaction to Boeing’s building a new facility in South Carolina, a move the NLRB is prosecuting as unlawful retaliation against unionized workers at Boeing’s facility in Washington State.
  • Parental Bereavement Act of 2011 (S. 1358). This Act, currently pending in the U.S. Senate, would permit parents FMLA leave in the event of the death of a child. The FMLA, as currently worded, does not afford leave in the event of the death of a family member.
  • Important Reminders

    Employee Rights Notice Posting. Effective January 31, 2012, you are required to post a notice advising employees of their right to unionize. The poster must also be posted in a language other than English if more than 20% of your workforce speaks that language. Although initially proposed, the new rule does not require employers to distribute this notice electronically (via e-mail, voicemail, text message, etc.). The poster is available at the National Labor Relations Board’s website,in both English and Spanish. The NLRB also offers responses to FAQ’s on the subject.”

  • Concealed Carry. As you have no doubt heard (and perhaps read about in this space), Wisconsin has a new concealed carry law. This means that, beginning November 1, 2011, Wisconsin will permit individuals with certain training and licensure to carry concealed weapons. The new law does not require that you permit concealed weapons on your premises. In fact, you can prohibit weapons in your plant, office, company vehicles and parking lot (except for properly licensed and trained individuals who store weapons in their personal vehicles). For more information, read our Concealed Carry FAQ's.

  • Enforcement Actions Continue to Rise

  • Misclassification. The Federal Department of Labor recently announced an “information sharing” agreement with the IRS and seven states (and agreements pending with four more) regarding employers who may have improperly paid employees as independent contractors (and, thereby, side-stepped FICA, overtime, minimum wage, etc.) [Note: Wisconsin is not yet a party to this agreement.]

    In 2010, the Labor Department collected nearly $4 million dollars in back wages on behalf of approximately 6,500 allegedly “misclassified” workers. This represented a 400% increase over prior years.

    Employer take-away: For an individual to be lawfully categorized as an independent contractor in Wisconsin, he or she must satisfy three different tests:

    As is often the case, an ounce of prevention is worth a pound of cure in such instances. Feel free to call or e-mail if you have any questions about any of these tests or how they might apply to individuals you consider, or wish to consider, independent contractors.

  • Employment of illegal immigrants. Numbers are out regarding the Federal Department of Immigration and Customs Enforcement (ICE) activities for the 2010 fiscal year. During that period, ICE audited over 2,700 companies, levied civil fines in excess of $7 million, and launched criminal charges against 180 employers. These numbers were all substantial increases over prior years and, in some cases, by many multiples.
  • Earlier this year, Rep. Lamar Smith (R-Texas) introduced the Legal Workforce Act (H.R. 2164). This Act would make mandatory the use by employers of E-verify for all applicants for employment; and for current employees as their I-9 documentation expires, in the event of a Social Security “mismatch,” or if they work on Federal or state government projects. The bill is currently pending before the House of Representatives.

    Social Media as “Protected Concerted Activity”

    In a series of recent decisions, the National Labor Relations Board (NLRB) has made it clear that employees who engage in discussions of employment terms or conditions or make comments reflecting group concerns are engaged in “protected concerted activity” and, as such, shielded from discipline under the National Labor Relations Act. A sampling of cases in a recently published NLRB report demonstrates how difficult it may be to make this determination. Consider the following:

  • An employee at a luxury car dealership posts on Facebook about his concerns that an event at the dealership will “send the wrong message” to customers because foods include “overcooked hot dogs and stale buns.” This was found to be protected activity, because the employee was found to be speaking on behalf of more people than just himself.
  • A newspaper encouraged employees to open Twitter accounts as a means of fishing for news stories. An employee then tweets about sports headlines, the public safety beat and the television station owned by the newspaper – and continues to do so after warnings against such conduct. This was found to not be protected activity, as it did not relate to the terms or conditions of his employment and did not involve concerns of employees other than himself.
  • Employer take-away: While more employers are adopting social media policies, such policies may be unenforceable if they (1) prohibit employees from postings that might depict the company in unfavorable terms; or (2) include broad prohibitions on disparaging comments, inappropriate discussions or the use of offensive language. Accordingly, in a social media policy it is imperative that you find balance between setting an appropriate standard for electronic communication and prohibiting so much electronic communication that it is either illegal or impossible to enforce in a practical sense.

    Litigation Update

    Recent Verdicts and Settlements

    • “Work-Life Balance?” A New York District Judge recently threw out a case brought by the EEOC against Bloomberg L.P. In its lawsuit, the EEOC alleged that Bloomberg discriminated against employees who were pregnant or returning from maternity leave by virtue of its well-known requirement of “all out dedication” from its employees. Evidence at trial showed that both men and women complained of perceived discrimination related to time off from work. Ultimately, however, the Judge ruled “the law does not mandate ‘work-life balance’” and, in a culture such as Bloomberg’s, employees who take time off from work cannot presume the same opportunities for salary increases, advancement, etc. as their colleagues
    • Employer take-away: Look for more litigation on this front, as the concept of “work-life balance” bumps up against discrimination and leave laws – and especially in cultures not as clearly or uniformly defined as Bloomberg.

    • Two former employees of Abri Health Plan, Inc., located in Germantown, have been awarded $4.8 million under the False Claims Act for raising concerns relative to the company’s handling of Medicare Part C coverage. More specifically, the claims were that Abri sales agents paid doctors for referrals, paid clients to enroll, misled clients about the scope of coverage, and sometimes even enrolled clients without their consent. The False Claims Act is intended as an incentive to whistleblowers with respect to fraud against the Federal Government, its programs, and contractors.
    • A Federal judge has ordered the Town of Beloit to pay over $300,000 in attorney’s fees and court costs to two employees who claimed they were retaliated against for speaking out about racist remarks by the Town’s former police chief. The two employees, a husband and wife who suffered a demotion and reduced hours (respectively), won a jury verdict in May 2011 against the Town in the amount of $1.5 million. This case was one of six brought by various current or former employees regarding the former police chief, who was accused of, among other things, using the N-word, refusing to hire a local towing company because of the owner’s race, and other “aggressive” language and behavior.
    • The City of New Berlin has agreed to pay $150,000 to a former dispatcher after the detective who performed her background check shared information regarding the dispatcher’s medical history and financial situation with the detective’s friends and acquaintances. The dispatcher, subsequently the subject of office gossip, left the position after only six months.
    • The Occupational Safety and Health Administration (OSHA) has fined Mega Marts LLC, a subsidiary of Roundy’s Supermarkets Inc., $126,000 for two “willful” safety violations at a Brookfield Pick ‘n Save. The fines stem from an incident in which an employee broke his leg after falling 12 feet from a motorized stacker. OSHA defines “willful” violations as those committed with “intentional, knowing or voluntary disregard for the law’s requirement or plain indifference to employee safety and health.”
    • OSHA and Cooperative Plus, Inc., a farm co-op with grain facilities in Whitewater, Burlington, East Troy, and Genoa City, have agreed to a $550,000 fine related to over 39 safety violations, 14 of which were deemed “willful.” The fines stem from an incident in which an employee was injured after being trapped in a grain bin. The settlement also calls for training on safe methods for inspecting and emptying grain bins.
    • Who'd-a-Thunk-It?

    • Recent studies suggest the cost of a “disengaged” workforce - $300 billion per year.
    • Employer take-away: A lot of ink has been spent in recent months and years on the topics of hiring and firing in the new economy, with employee engagement relegated to a “luxury” that we’ll return to in good times (after all, they should be happy to have jobs, right?) The fact is that unhappy, unmotivated, or otherwise stressed or anxious employees are simply not as productive or innovative as they might otherwise be.

    • Web surfing at work is productive activity, according to a recent study of three groups of undergraduates assigned certain work tasks (some of whom were not allowed a break, a second group allowed a break for anything but “web-surfing,” and a third group allowed to “surf”). The study concluded that web browsing can refresh tired workers by allowing them to relax and explore topics of interest to them.
    • Employer take-away: There can be no question that the electronic world is redefining the workplace, including a blurring of the line between work and personal time. As set forth in the article referenced above, it is imperative to put policies in place that set the proper tone and are enforceable.

    We'd love to hear your feedback. Send comments to Mark J. Goldstein, S.C.

    If you would like more information about any of the cases, laws, or other developments cited, feel free to contact Mark J. Goldstein S.C.

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