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Searching for Articles by Dean R. Dietrich
Dean R. Dietrich
Attorney
Wausau Office
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Don’t Ask – Don’t Tell in Job Interview?

Posted on November 16, 2017, Authored by Dean R. Dietrich, Filed under Employment

A number of states have passed legislation prohibiting an employer from asking a candidate for a new job about his or her salary history in other employment settings.  While such a law has not passed in the State of Wisconsin, there is clearly a ground swell of support for employers to stop asking salary history questions during a new employee interview.  The claim is that salary history information can lead to discrimination on the basis of sex by impacting the amount of salary that would be offered to a candidate and the potential disparate treatment of female applicants based upon a history of unequal salary levels.  There is also growing opposition to asking questions about arrest or conviction records of an applicant and delaying any consideration of criminal background records until making the final decision on hiring an applicant.  Both of these considerations limit the ability of a company to get background information on a candidate to ensure the best candidate for the position is selected. Employers need to consider the balancing test between gathering as much information as possible about a candidate compared to perpetuating pay differentials based on sex or preventing a reformed candidate from being considered for gainful employment after making judgment mistakes in the past.  Many states have said salary history should not be a part of the hiring process and employers are prohibited from asking about salary history of a candidate in the employment application materials or during the interview process.  It may be beneficial to ask the candidate what his/her salary expectations are for the position but avoid background information regarding current or past salary history in other employment positions held by the candidate. Asking about prior convictions is also subject to recent legislation in various cities throughout the country.  “Ban the Box” legislation has been adopted in various locations which prohibits the employer from asking if the candidate has been subject to previous convictions even if the question tries to limit the focus on prior convictions that substantially relate to the job being filled by the company.  The State of Wisconsin no longer asks that question on its employment application but such a “ban” has not been extended to other employers (either public or private) in the State.  Other employers may want to follow the lead of state government and open the door for convicted felons to be given the same consideration for a position as any other candidate.  Again, there is a balancing act between the desire of the company to obtain as much information as possible about potential employees compared to the desire to give convicted felons an opportunity to better themselves and become a successful employee after having “served their time” for the violation.  Employers need to decide how best to address the challenge of filling a position with limited candidates and the willingness to be flexible when considering the background of a particular candidate. The hiring process can be very challenging for an employer.  Today’s employee market is very tight and often an employer has to lower their expectations in order to find someone to fill a vacant position.  Limiting the information an employer receives during the application and interview process will make decisions more difficult but will also support community and societal goals.

One Racial Slur Constitutes Harassment?

Posted on May 4, 2017, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the Second Circuit Court of Appeals in New York has again opened the door to questions about hostile work environment and racial harassment.  The particular question addressed in this court decision was whether one racial epitaph (use of the “n-word”) would support a claim for racial harassment and the creation of a hostile work environment.  The Court did not make a final ruling but rather found the lower Federal District Court had improperly interpreted a 1997 decision and acknowledged that the use of a racial slur could form the basis for a claim of racial harassment and a hostile work environment.  This is not a definitive ruling but rather an acknowledgement that this area of the law is unclear and is open to further interpretation.  The Court did acknowledge that one utterance of a racial slur could be sufficient to defeat a motion for summary judgment against the employee meaning the case would be presented to a jury or judge to determine whether or not a hostile work environment existed. Wisconsin employers have a somewhat different landscape.  It is clear a single act of sexual harassment could form the basis for a claim of sexual discrimination under the Wisconsin Fair Employment Act.  The definition of sexual harassment in Wisconsin acknowledges a single act could form the basis for a claim of harassment.  This definition has not been applied specifically to a claim of racial harassment or hostile work environment based upon anti-racial discrimination but we can see how the courts would find the Wisconsin law gives that type of protection whether the claim of hostile work environment is based upon sex, race, national origin or even age.  Wisconsin employers can avoid being a test case on this issue by doing proper training of employees and supervisors to ensure it is clear this type of behavior is not appropriate in the workplace.

Wisconsin Court Re-affirms Employment At Will Principles

Posted on July 27, 2017, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the Wisconsin Court of Appeals has upheld the concept of “employment-at-will” and determined that an employment-at-will provision in an employment contract superseded company policies that provided alternative procedures to be followed when investigating inappropriate conduct of an employee.  In a recent decision of the District IV Court of Appeals, the Court held that the employment-at-will provision in a written employment agreement between a physician and Dean Health Systems, Inc. was the controlling principle when a legal challenge was filed to the termination of the physician (Bukstein v. Dean Health Systems, Inc. (Case No. 2016AP920)). The physician was employed by Dean Health Systems, Inc. under a written employment agreement indicating that the physician was employed at-will and could be terminated at any time “without cause.”  The Clinic terminated the employment of the physician after conducting an investigation regarding allegations of inappropriate conduct by the physician when interacting with patients.  The physician argued that the Clinic had adopted a “management policy” that described the procedure that would be followed by the Clinic when investigating conduct of an employee, and that such policy should supersede the at-will employment provision in the employment agreement.  The argument was made that the Clinic violated the management policy when it failed to properly comply with all aspects of the policy and that the policy created a duty of good faith and fair dealing when considering the termination of an employee.  The ultimate conclusion of the Court of Appeals was that the management policy did not supersede the employment contract and did not modify the right of the Clinic to terminate the employee under the at-will provision.  The Court of Appeals reaffirmed the at-will employment rule holding that “at-will employees are terminable at will, for any reason, without cause and with no judicial remedy.”  The Court of Appeals did acknowledge that an employment at-will provision could be modified under the “only when” rationale which holds that an employment-at-will relationship may be altered “only when” the management policy (as described in a handbook manual or procedure) contains express provisions from which it can be reasonably inferred that the parties intended to bind themselves to a different employment relationship other than the employment-at-will relationship.  The Court held that the “only when” rule must be very clear in the management policy adopted by the company so that there was a definite intention to modify the at-will relationship by the adoption of such a policy. The importance of this decision is a recognition of the employment-at-will relationship and a clarification of when that relationship may be altered by other actions taken by the company.  The Court of Appeals also noted that there was no automatic good faith requirement when terminating an employee that is subject to an at-will employment provision in an employment agreement.  Employers are again informed that an at-will employment provision is enforceable provided the employer has not adopted other policies or procedures that are designed to modify that relationship.

Protected Employee Must Notify Employer of Need for Time Off

Posted on May 31, 2017, Authored by Dean R. Dietrich, Filed under Employment

A recent decision in the Northern District of California highlighted the importance of employers applying a consistent rule that employees must notify the employer if they are unable to report to work, even if the employee suffers from a disabling condition.  In a recent decision, the Federal Court Judge held that a Company properly terminated an employee who suffered from several disabilities because the employee did not follow the company call-in policy that required an employee to call in before 9:00 a.m. if they were unable to report to work on a particular day. In this case, the employee suffered from several disabilities which sometimes interfered with his ability to report to work.  The employee received permission from the Company to take time off when necessary because of the disabling conditions but was told he must notify the Company if he was taking time off.  On the first occasion the employee failed to notify the Company, the Company gave the employee a final warning and made it clear the employee must notify his manager before 9:00 a.m. if he was taking off work on that particular day because of his conditions.  Several weeks after this written notice, the employee failed to report in when he was taking off and did not report in for a period of four days.  As a result of this failure to report in, the Company terminated the employee. The Federal Court dismissed the claims brought by the employee when it was shown the employee was on the internet and accessing various sites during the time that he was off work so he could not justify his claim he could not report in to the Company that he would be off work due to his conditions.  The Federal Court held that the Company had the right to terminate the employee, especially after the employee acknowledged he understood the call-in requirements that were applicable if he needed to take time off because of his disabling conditions. This case is a reminder that a Company needs to clearly communicate with employees regarding its policy for calling in and being absent from work.  If a Company enforces this policy uniformly and consistently, the Company is in a position to successfully address the situation where a disabled employee is simply away from work without any type of notice to the Company.

Limited Right to Ask for Discontinuance of Dues Deductions

Posted on January 10, 2017, Authored by Dean R. Dietrich, Filed under Employment

A recent federal court decision in Madison has struck down a portion of the Right-to-Work law applicable to all employers in Wisconsin.  Under this decision by U.S. District Judge William Conley, the Court has issued a permanent injunction stopping employers from following the language in Section 111.06(1)(i) of the Wisconsin Statutes.  This provision of the state statutes provides that an employer is prohibited from deducting dues from an employee paycheck if the employer receives a notice from an employee requesting discontinuance of the dues deductions within 30 days.  The Court determined that federal law would supersede the state law and set a different schedule for when an employee may notify an employer of discontinuance of dues deductions. The practical effect of this decision is to require an employee to follow the timelines listed in the union dues card for notifying the company to discontinue dues deductions.  Typically, the timeline identified in the union card is a specific date (usually 15 days or 30 days) prior to the date the employee signed the union card (annual anniversary) or the date of expiration of an existing Labor Agreement.  In other words, an employee has a limited time frame to notify the employer that he/she no longer wishes to have dues deducted from his/her paycheck.  The timeline is identified in the union dues card signed by the employee and complies with the federal law that allows the union to have an irrevocable contract for dues deductions of a maximum of one year. Many employers have pursued language in Labor Agreements that would allow an employee to give a 30-day notice of discontinuance of dues deductions at any time.  There is still a significant question whether these contract provisions would be enforceable in light of this new federal court ruling.  At this time, it is not clear whether an appeal will be taken as the federal court decision relies heavily upon a federal court case that has not been overturned by the United States Supreme Court.  Employers must now be careful how they handle the discontinuance of dues deductions when receiving a notice from an employee desiring to stop the automatic deduction of union dues from their paycheck.

Extended Leave is an Accommodation – Maybe Not

Posted on November 20, 2017, Authored by Dean R. Dietrich, Filed under Employment

As the after effect of the recent Seventh Circuit Court of Appeals decision about extended leave as an accommodation continues to develop, a serious question is developing of whether an employer is obligated to give an extended leave to a person with a disability who has exhausted their twelve weeks of federal medical leave.  The Seventh Circuit Court of Appeals decision said that the Americans with Disabilities Act is not an automatic extended leave law and seemed to imply there was no duty to provide extended leave to an employee who suffers from a medical condition that is preventing the employee from returning to work after being off for twelve weeks to heal.  Court cases have clearly said an employer cannot have an automatic termination policy after an employee exhausts medical leave provided by the federal law, but it is certainly unclear whether an employer is obligated to grant continued unpaid leave to an employee who suffers from a medical condition that prevents the employee from returning to work.  There is growing support for the argument that a leave extending beyond the twelve weeks provided by FMLA is not an automatic reasonable accommodation to be given to the disabled employee. The limits of what constitutes a reasonable accommodation of granting additional time off is certainly unclear in light of this recent decision and the many statements being made by the human resource community.  I think it is safe to say that an employer would be obligated to grant an additional extension of the leave without pay for a very limited time if there is a strong prognosis from treating health professionals indicating the employee will be able to return to productive work with the company.  Where the line is to be drawn as to what constitutes a reasonable extended leave is certainly unclear and is subject to detailed consideration of every individual employee situation. Until we get clearer guidance from the courts, I believe that employers need to consider some type of extended leave beyond the twelve weeks of federal mandated family leave in those situations where an employee is going to be able to return to work in the near future.  The real question will become what does the near future mean.

What Does New Employee Handbook Standard Mean?

Posted on January 12, 2018, Authored by Dean R. Dietrich, Filed under Employment

Attorney Bob Reinertson wrote recently about a decision of the National Labor Relations Board that significantly changed how the NLRB will review workplace policies and employee handbooks to determine whether they are in compliance with federal law.  The issue has always been that workplace policies (normally included in an employee handbook) may not interfere with an employee’s rights protected by the National Labor Relations Act.  Recent decisions by the NLRB have significantly modified the outlook from the NLRB as to what types of policies a company can adopt and whether those policies would interfere with employee protected rights.  The past Board decisions focused on whether the language could be interpreted in any fashion to in some way create an employee’s perception that the company is trying to limit their rights to communicate about working conditions. The recent decision from the NLRB has adopted a new test that will be used by the Board in determining whether or not a company policy or workplace rule violates the National Labor Relations Act.  This new test indicates that the Board will evaluate two specific criteria when looking to determine whether or not a particular workplace policy or rule will potentially interfere with the exercise of employee rights.  The two criteria are: The nature and extent of the potential impact the workplace policy or rule would have on employee protected rights; and Whether there are legitimate justifications associated with the rule that would override or supersede any concerns about the potential impact on the employee exercise of protected rights. These two criteria will be looked at very closely by the Board and its agents if a complaint is filed regarding a workplace policy or a provision included in a company employee handbook.  This seems to be a balancing of the importance of no restrictions on employee protected rights and the right of a company to create workplace policies or rules necessary for management of the business setting. In the end, the Board indicated that there would be three different categories of employment policies or employee handbook provisions that would result from this new balancing test.  Those categories are: Company policies or rules that will be considered lawful because the rule (as reasonably interpreted) does not prohibit or interfere with the exercise of employee rights or the potential adverse impact on employee rights is outweighed by the justifications associated with the rule or workplace policy; Company policies or rules that require more individualized review and scrutiny to determine whether the rule interferes with the exercise of employee rights and whether that interference is outweighed by legitimate business justifications for the rule; Company policies or rules that are deemed unlawful because they interfere with employee rights and the interference outweighs any company justification provided for the implementation of such a rule in the workplace. This new weighing process provides more opportunity for a company to justify why they have implemented a particular company rule or workplace policy that addresses employee conduct in the workplace.  The weighing process that will be used by the Board gives equal consideration to protecting employee rights and the importance of a company implementing work rules that allow the company to regulate the conduct of its employees in the workplace for legitimate business reasons.  Companies should spend the time making sure they have justification for any work rule or workplace policy that is necessary for addressing employee conduct in the workplace.

Are You a Joint Employer? Watch Out for Potential Liability

Posted on March 13, 2017, Authored by Dean R. Dietrich, Filed under Employment

Many businesses today use other entities to provide employees for their business operations.  This type of structure is often viewed as a good way for a company to avoid many of the pitfalls of being an employer under state and federal laws.  A recent court ruling has redefined what it means to be a joint employer and may cause companies to change their model or simply decide to be the employer of record. In a recent ruling by the United States Court of Appeals for the Fourth Circuit, the Court of Appeals established a new six-factor test to determine whether or not two entities should be considered joint employers under the Fair Labor Standards Act.  This new test is different than other jurisdictions and may be a signal the court view of joint employer status is changing and not in a good way.  In the decision in Salinas v. Commercial Interiors, Inc. (2017 WL 360542), the Fourth Circuit Court of Appeals established a new test for joint employer status where “(1) two or more persons or entities share, agree to allocate responsibility for, or otherwise codetermine – formally or informally, directly or indirectly – the essential terms and conditions of a worker’s employment and (2) the two entities’ combined influence over the essential terms and conditions of the worker’s employment render the worker an employee as opposed to an independent contractor.”  The Court went on to set forth six factors that should be considered when applying the test of whether two or more entities are joint employers.  The factors are the following: “(1)      Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to direct, control, or supervise the worker, whether by direct or indirect means;    (2)     Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate the power to – directly or indirectly – hire or fire the worker or modify the terms or conditions of the worker’s employment;    (3)     The degree of permanency and duration of the relationship between the putative joint employers;    (4)     Whether, through shared management or a direct or indirect ownership interest, one putative joint employer controls, is controlled by, or is under common control with the other putative joint employer;   (5)     Whether the work is performed on a premises owned or controlled by one or more of the putative joint employers, independently or in connection with one another; and   (6)     Whether, formally or as a matter of practice, the putative joint employers jointly determine, share, or allocate responsibility over functions ordinarily carried out by an employer, such as handling payroll; providing workers’ compensation insurance; paying payroll taxes; or providing the facilities, equipment, tools, or materials necessary to complete the work.” This test is not that different from other court rulings, but it recognizes a more broad interpretation of joint employment.  My fear is that this is a huge signal from the courts that joint employer status is going to be liberally construed going forward.  Employers must be careful when thinking about their potential claim that they are not in a joint employer relationship with another organization.

New Legislation Limits Government Zoning Regulations

Posted on December 4, 2017, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

New legislation has been signed by Governor Walker that limits the ability of local governments to control certain zoning regulations and requires greater flexibility in the approval of conditional use permits.  Under 2017 Wisconsin Act 67 which was just signed by Governor Walker, there are new limitations on the ability of a local government unit to enforce zoning regulations.  In particular, the new legislation gives the following protections to property owners: Property owners who own a substandard lot that was considered a buildable lot at the time of purchase may now sell that substandard lot without restriction even though municipal regulations would prevent the use of that substandard lot as a building lot under new zoning regulations. Local government units are restricted in the amount of discretion that can be exercised when considering the granting of a conditional use permit under the local government zoning ordinances.  The appropriate zoning regulation agency must grant a conditional use permit if the property owner complies with the stated requirements for the conditional use which means that the agency cannot exercise discretion as to the reasonableness or appropriateness of the conditional use permit based upon the specific circumstances of the property in question. Other changes are included in this new legislation that limit the right of a local government unit to address zoning issues and grants far greater discretion to the property owner when pursuing compliance with a local government zoning ordinance. This new legislation is designed to address a recent United States Supreme Court decision that limited the right of a property owner to sell a substandard lot to fund improvements to a building on an adjoining lot.  The legislation has gone much further, however, by limiting the discretion that a local government zoning agency can exercise when considering the granting of a conditional use permit requested by a property owner.  All local government units that are engaged in zoning regulations will need to consider this new legislation and modify how they address conditional use permits.

Employee Absenteeism Due to Disability: What are Reasonable Accommodations?

Posted on March 2, 2017, Authored by Dean R. Dietrich, Filed under Employment

One of the most troubling issues faced by human resource professionals is how to address an employee with a disability that impacts their ability to report for work.  A good example is an employee who suffers from episodes of depression that affect the employee’s ability to come to work.  It is almost impossible to challenge that type of condition as not being a disability so the employer needs to figure out how to accommodate the employee without creating a workplace morale problem.  The issue normally focuses around the balance between the duty to accommodate an employee with a disability and the requirement of regular attendance as an essential function of the employee’s job.  Many cases have held that regular attendance is a proper and reasonable essential function for almost all positions.  The debate really focuses on what type of an accommodation does the employer have to make in order to allow the employee to continue to work when the employee needs additional time off.  This most often arises when an employee has exhausted all family medical leave and even short-term disability leave provided as a benefit to employees. In a recent decision by the Sixth Circuit Court of Appeals, the Court of Appeals offered some guidance to employers.  The Court held that a request for a flexible start time and ten minute breaks every two hours was not a reasonable accommodation for the employee who suffered from depression and anxiety and needed time off to calm down after anxiety attacks.  The Court of Appeals recognized that regular attendance at work was an essential function for the employee working in a customer service position which involved answering phone calls from telephone service customers.  The Court of Appeals also found the request for a flexible start time and multiple breaks was not reasonable because the anxiety attacks were unpredictable and could not be attached to a fixed work schedule.  The employee also asked for more time away from work after the employee exhausted all available leave time.  The Court found this was not a reasonable accommodation because the employee and her physician could not give a specific time when the employee would be able to return to work. Every case of reasonable accommodation requires an interactive process with the employee and a review on an individual basis.  In this case, the Court held that the accommodations being requested by the employee were not reasonable which provides some support for limitations on the type of accommodations that need to be given to an employee with a disabling condition that affects attendance.  Employers must always be careful to do a separate analysis in each case depending upon the condition of the employee.

EEOC Sues for Transgender Discrimination

Posted on October 6, 2017, Authored by Dean R. Dietrich, Filed under Employment

Recent action by the Equal Employment Opportunity Commission has raised the specter of whether transgender persons are considered protected under the federal discrimination laws.  The EEOC has sued a company in Denver that allegedly discriminated against a transgender man who applied for a position as manager.  This case addresses the question whether a transgender person is protected under federal sex discrimination laws. The company, A & E Tire, Inc., was sued by the EEOC alleging the company discriminated against a transgender man who applied for a manager position.  The person was essentially given the position subject to a background check.  During the background check, it was discovered the individual was born as a female but was presenting as a male.  The individual seemed very qualified for the manager job but when it was discovered the individual was actually born a female, the company withdrew the offer of employment and hired someone else. The EEOC is seeking an injunction that would require the company to hire this employee.  The case is moving through the federal court system in Colorado and will become a test case for interpreting federal discrimination laws.  The best practice right now is to avoid any type of employment decision based upon transgender status of an employee. Contrary to the position taken by the EEOC, Attorney General Jeff Sessions has recently indicated that it is the position of the Department of Justice that transgender discrimination is not protected under federal laws.  There has been no reaction from the EEOC regarding this statement; however, it juxtaposes the Department of Justice against the EEOC as to whether or not transgender employees will receive the same protections as other employees under federal law.  We are certain to see more information about this in the future.

Joint Employer Status Rebuffed?

Posted on June 14, 2017, Authored by Dean R. Dietrich, Filed under Employment

Recent action by the Trump Administration has raised a new question regarding joint employer status and whether particular employees hired (individually or through a company) to provide work for another company should be considered an employee of the hiring company.  The past Department of Labor issued various memos that indicated a crackdown on independent contractor status and projected that many situations where a company hires another company to provide workers would actually result in both companies being considered joint employers of the workers.  Many companies sought protection by claiming these workers were only employees of the hired company or were independent contractors and therefore not under the control or jurisdiction of the hiring company.  The directives from the Obama Administration caused a number of companies to scurry to determine whether or not they would be potentially liable for various employment matters or decisions because of the joint employer status. The withdrawal of this guidance does not necessarily change the law but does change the anticipated focus of Department of Labor investigations.  Companies can continue to hire individuals who would qualify as independent contractors or hire a company that would provide workers.  There will still be questions whether the workers are actually employees of the hiring company, especially if the claim is that the workers are each individual independent contractors providing some particular type of service to the hiring company.  The law regarding independent contractor status has not changed but whether it will be the topic of aggressive enforcement now needs to be determined. Employers should not breathe too easy nor go out of their way to risk a particular worker being considered an independent contractor or an actual employee of the company.  There is still potential liability if an individual worker is declared an independent contractor but actually qualifies as an employee of the company.  The company may be responsible for income tax withholdings, worker’s compensation coverage and other types of benefits if the employee is misclassified as an independent contractor and actually qualifies as an employee.  Employers should be careful but at least will be given a fair chance to show an individual is not an employee of the company.

Eligibility for Overtime Pay – Redo?

Posted on July 31, 2017, Authored by Dean R. Dietrich, Filed under Employment

Recent action taken by the Department of Labor has started to signal the likely “redo” of the Fair Labor Standards Act regulations regarding overtime pay and which employees are eligible for overtime pay.  The Department of Labor issued a Request for Information document that asks employers to respond to a series of questions on overtime pay eligibility and the exemptions from overtime pay requirements.  This is not the start of a new rulemaking process but rather a very preliminary move to request information that will be used to formulate a new rule on eligibility for overtime pay and what type of employees are exempt from overtime pay for hours worked. The questions posed by the Department of Labor are not specific enough to identify any detail of what might be a new rule on overtime pay eligibility.  The questions range from references to eliminating the salary test as part of the calculation to determine whether an employee is exempt to seeking input on whether the amount of salary under the salary test should be different based upon a geographical region or the type of industry the employer is in.  The suggestion from these questions is the Department of Labor is looking at a broad range of options ranging from eliminating the salary test in its entirety to modifying the salary test to be a lesser amount than what was proposed by the Obama Department of Labor.  It is far too early to give any guidance or direction to employers on what changes might take place although it is clear that the proposed overtime pay rule which raised the salary level to $47,500 will not become the law of the land. The legal challenge to the overtime pay rule change is pending in the Fifth Circuit Court of Appeals based upon a decision by a Texas federal judge.  The Department of Labor has continued to pursue a part of that case but not seek a court ruling that would allow the implementation of the new salary level to qualify an employee as exempt from FLSA overtime payments.  The issue being litigated in the Fifth Circuit Court of Appeals centers on the question whether the salary level requirement is actually allowed as part of the Department of Labor regulations because there is some suggestion that the original legislation never envisioned a salary level test as part of the determination of whether an employee is exempt from overtime pay requirements.  We can assume this matter will linger for a while but at least we know the Department of Labor is looking at this issue and that it is likely something will be proposed in the future.  Responses to the Request for Information are due over the next 90 days which may then start the rulemaking process for a new overtime pay exemption rule.

Seventh Circuit Court of Appeals Speaks Out on Employment Issues

Posted on May 3, 2017, Authored by Dean R. Dietrich, Filed under Employment

Several recent decisions by the Seventh Circuit Court of Appeals have set the tone for court decisions in the employment law field.  The Seventh Circuit Court of Appeals covers a number of states in the Midwest, including Wisconsin, so the rulings are important for Wisconsin employers up to a point.  The first decision involves sexual orientation.  The Seventh Circuit Court of Appeals held, contrary to other Courts, that sexual orientation is protected under Title VII of the Civil Rights Act and thereby extends the right of an employee to bring suit for discrimination based upon sexual orientation.  This decision sets the stage for a Supreme Court review of the entire question although it does not have a heavy impact on Wisconsin employers.  Sexual orientation is a protected category under the Wisconsin Fair Employment Act so Wisconsin employees have a state law protection even if the federal law does not extend protections against such discrimination to employees.  The decision will not make a big difference for Wisconsin employers other than opening the door to potential federal claims for discrimination based upon sexual orientation.  There are certain circumstances where a federal claim could allow an employee to recover more monies from an employer if that type of discrimination is proven in federal court. In another decision, the Seventh Circuit Court of Appeals held that a Wisconsin employer did not discriminate against an employee who was unable to perform the regular duties of her position.  In its ruling, the Seventh Circuit found that the employee failed to prove a retaliation claim because she was unable to show her termination was based solely upon her having filed a discrimination complaint against the University of Wisconsin-Platteville.  The Court concluded that the actions taken by the University were not “materially adverse” to the employee at a level to suggest they persuaded the employee to not engage in the protected activity of filing a discrimination complaint.  The employee alleged that statements made by her supervisor showed a materially adverse activity by the employer, but the facts showed that the statements did not directly criticize the employee.  The Court of Appeals also found that the employer had offered legitimate, non-discriminatory reasons for being critical of the employee and there was nothing to show that these reasons were a pretext for some type of retaliation.  These decisions show the “yin and yang” of court decisions today and offer little guidance to employers when addressing difficult issues in the workplace.  It seems evident that employees will be afforded more protections under state and federal law to ensure they are not adversely affected based upon a discriminatory reason.  It is also clear that employers have a right to address performance concerns of employees as long as there are legitimate, non-discriminatory reasons for the action being taken.

Asking for Current Salary in Application?

Posted on January 27, 2017, Authored by Dean R. Dietrich, Filed under Employment

The City of Philadelphia has passed legislation that prohibits an employer from asking for the current salary of an applicant being considered for employment with a public or private employer.  The theory behind this legislation is to prevent employers from excluding applicants who may be interested in a position even though the salary level of the position being applied for is less than what the individual is current earning.  The desire is to open the door for all applicants to be considered equally instead of applicants being “weeded out” because of their current level of earnings. This is an admirable thought but it also places a large burden on employers who will be interviewing candidates and potentially selecting a candidate that will demand a much higher salary than the company wishes to offer.  This could lead to first choice applicants being excluded from actual employment because of salary demands. I have often thought that money was not a controlling factor when someone applies for a new position.  It was my thought that the applicant applied for the position because they wanted to do that type of work or wanted to work with that company.  Many years of experience have taught me that money is a very important, if not the most important, consideration for many applicants for a position.  I wish I could say differently. As a result, this type of new legislation could create a greater burden on employers as they go through the hiring process and then find out the applicant earns a far higher salary than the company can offer.  It may also expand the employer’s belief that individuals with certain qualifications are interested in the job when that really is not the case. We will have to wait to see if this type of prohibition spreads to other states and employers.  For example, Massachusetts has similar legislation but there is no talk of this in Wisconsin.  Salary consideration should not be foremost in determining the suitability of a candidate for a position because there always is potential for a claim of discrimination by the higher paid applicant due to age, but salary considerations normally would be part of the hiring process.

Seventh Circuit Court of Appeals – Super Human Resource Department?

Posted on October 9, 2017, Authored by Dean R. Dietrich, Filed under Employment

The Seventh Circuit Court of Appeals (which addresses federal court cases brought in Wisconsin) has stated in the past that it does not intend to be a “super human resource department” for employers.  Recent court decisions have suggested that the Federal Court may be reconsidering that position.  There have been a number of employment law decisions in the Seventh Circuit that may significantly affect Wisconsin employers. In one decision, the Seventh Circuit Court of Appeals reinstated a lawsuit brought by a legal assistant against a Chicago-based law firm alleging that she was fired because of her age and discriminatory treatment based upon her age.  The lower court had determined that the claim by the legal assistant was not plausible and dismissed the complaint.  The Seventh Circuit Court of Appeals reinstated the claim finding that the employee had met the initial standard to show there was a basis for an age discrimination claim and directed the matter be heard in order to get facts surrounding the alleged discrimination complaint.  The case focused on the size of the law firm and the suggestion that the Age Discrimination in Employment Act did not apply to the small law firm.  The Seventh Circuit Court of Appeals determined this type of defense was not appropriate at the initial stages of the case and reinstated a complaint to be considered by the lower court. In another decision, the Seventh Circuit Court of Appeals found that a non-compete agreement signed by the former owner of a business was valid and binding upon the former owner, but also found that the former owner did not violate the non-compete agreement when the owner sold another business to a competitor and helped that competitor set up the business.  The case focused on whether or not the alternate business owned by the seller was a direct competitor of new owners of the business that was sold.  The Court found that the former owner who sold the distributor business was not directly competing with the business that was sold to the new owners and therefore the non-compete agreement did not apply to the actions of the seller relating to this second business.  The Court did uphold the non-compete agreement in a sale of business scenario, but then it narrowly interpreted the language of the non-compete agreement and did not enforce it as it related to competition with the new owners of the business. In a third decision, the Seventh Circuit Court of Appeals has gone on record holding that the Americans with Disabilities Act (and the successor Americans with Disabilities Act Amendments Act) is not a leave extension law by finding that an employer was not automatically obligated to extend a leave of absence for an employee claiming a disability beyond the leave requirements of the Family and Medical Leave Act.  In other words, the Court of Appeals said that an employee cannot rely upon a disability discrimination claim to obtain more leave time than the 12 weeks of leave authorized under FMLA law.  This is a ruling of first impression and has been subject to a great deal of scrutiny as employee advocates claim that an employer must consider a reasonable accommodation of additional time off if an employee is still in the healing phase of a disabling condition.  This decision also conflicts with rulings in other federal circuits and is not a definitive statement on what duties of reasonable accommodation will apply to an employee suffering from a disability.  It is, however, a first crack in the wall of decisions that support a duty of an employer to make accommodations for any employee that suffers from a disability. While several of these cases will be subject to further proceedings, it is clear that the Seventh Circuit Court of Appeals is going to be involved in reviewing employer decisions on how to address employee conduct and employee claims of discrimination.

The Next Step toward Open Government – Preserving Text Messages

Posted on January 2, 2018, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

The Wisconsin Public Records Board is looking into the next step in preserving open government, which is how to save text messages and social media messages authored by local government officials.  The Public Records Board recently issued a press release stating that it was looking to develop new guidelines that would be used by government officials in dealing with text messages and social media messages.  The Chair of the Public Records Board stated that local government officials should not be using text messages for communicating about public business if the local government unit does not have a platform to manage and store the text messages or store social media statements used by the local government officials. As the future use of technology expands, local government officials will have to address how they are going to use these new forms of media and what steps need to be taken to preserve the integrity of local government by capturing and storing theses different types of communication.  Originally, there was a suggestion that text messages and social meeting commentary would be considered “transitory records” and would not be subject to the requirement for maintenance of a public record under the Wisconsin Public Records Law.  This theory was not well received and has not been implemented so local government officials need to be very concerned about how they communicate through text messaging and social media comments and take efforts to preserve the integrity of those communications.  The local government unit needs to consider purchasing appropriate services that would capture these communications and preserve them as a public record.  On a different front, the Attorney General for the state of Missouri has recently launched an investigation into the actions taken by the Governor and his staff of allegedly destroying public records by using a particular app that erases text messages.  It is alleged that the Governor and senior staff have been using an app called “Confide” which destroys text messages after they have been read and prevents anyone from saving or forwarding a text message or taking a snapshot of a text message to preserve it.  The investigation is underway as an effort to determine whether or not the Governor and his staff are violating the state’s Public Records Law.  While there are no reports of this type of behavior in Wisconsin, it is another example of how the use of technology and the various ways to communicate in today’s world can become a problem for local government officials.  More to come on this topic.

Ageism in the Workplace?

Posted on November 30, 2017, Authored by Dean R. Dietrich, Filed under Employment

There has been a lot of discussion lately about “ageism” in the workplace.  People are wondering what this means and what type of steps need to be taken by an employer to avoid age discrimination complaints. Ageism is the key word being used today to describe attitudes and behaviors in the workplace that reflect negatively on individuals over age 40 or sometimes what we refer to as senior employees. As the aging of the workforce takes place, there are more and more claims arising that a company is perpetuating a negative work environment against older employees.  This often leads to a claim of age discrimination when an employee is terminated even if the employee is having trouble performing their duties or not being successful in their work performance.  Employers need to look at their workplace and assess all aspects of their work environment to make sure they are not perpetuating a negative view of more senior employees.  Advertising materials or website materials that talk about a young workforce or a “hip” work environment are part of the atmosphere that a company projects that can create negativity relating to senior employees.  This workplace environment can send a message of bias against elder employees and sometimes becomes an exhibit in age discrimination hearings. This is an interesting challenge for employers who want to attract new employees to the workplace but at the same time want to ensure they are not creating a negative environment for more senior employees.  Company officials need to do an assessment of their work environment to make sure they are not perpetuating a negative work environment for senior employees.

Harassment Discrimination Covers the Waterfront

Posted on March 6, 2017, Authored by Dean R. Dietrich, Filed under Employment

We have always been concerned about the extent to which employees or the Equal Employment Opportunity Commission (EEOC) could claim they were suffering from harassment in the workplace.  Recent guidance from the EEOC clarifies its position regarding the extent of the types of harassment that could occur and for which employers will be held responsible.  In guidance issued by the EEOC on January 10, the EEOC states that employers are required to implement programs to combat any “known or obvious risks of harassment” and suggests a failure to do so could result in the loss of normal affirmative defenses to a claim of harassment such as proper action taken by the employer to address a harassment discrimination when brought to its attention. What’s most disturbing about this new guidance is the broad interpretation of the types of harassment that would be considered covered under various federal laws.  These include: Race Color National origin Religion Sex Age Disability EEOC went on to indicate that harassment claims could be based upon actions like: Sex stereotyping Sexual orientation Gender identity Genetic information Pregnancy EEOC also indicated it would pursue claims based upon actions that do not directly show harassment such as: Perceived membership in a protected class (even if the perception is not accurate); Associational harassment where an employee is a member of a protected class and claims inappropriate action based upon their association with another who does not share their protected characteristics; Where the alleged action was not directed at the complainant; Instances where the alleged harassment occurred outside of the workplace. While this is proposed guidance subject to additional comments and review, it signals the extensive nature of harassment complaints and potential liability for employers.  EEOC suggests there must be a committed and engaged leadership within an organization to ensure harassment claims are avoided at all costs and regular training is provided by the organization to address the potential for harassment complaints.  While some suggest the new administration will lessen the types of enforcement proceedings that will be taken against businesses, it is important to recognize the potential for harassment complaints against employees under a myriad of situations and make sure they are addressed appropriately through training and immediate effective action.

Right-to-Work Law Upheld

Posted on July 17, 2017, Authored by Dean R. Dietrich, Filed under Employment

Without much fanfare, the Seventh Circuit Court of Appeals has upheld the Wisconsin Right-to-Work Law.  The Right-to-Work Law passed in Wisconsin is similar to a law passed in Indiana and holds that a company may not enter into a labor agreement with a union representing company employees that requires the employees to join the union or to have union dues withheld from their paycheck. The Seventh Circuit Court of Appeals, which oversees federal court matters for Wisconsin, held that the Wisconsin Right-to-Work Law was the same as the Indiana Right-to-Work Law that was previously found to be constitutional and that there was no basis for changing the prior Court of Appeals decision.  Unions had claimed that the Right-to-Work Law constituted a taking of union property rights (union dues) without due process and thus was a violation of the federal constitution.  The Court of Appeals held that this was not the case and the state legislature had the right to adopt this statute which limited the obligation of union membership for employees of a company. The fight regarding the Wisconsin Right-to-Work Law is now really focused on when the law becomes effective for each company which depends upon existing labor agreements and the language in the labor agreement.  Many companies have proceeded with implementing this new law and giving notice to new employees that they are not required to join a union or have union dues taken from their paycheck.  A company should still honor voluntary dues deduction requests by an employee, but it is no longer something that can be mandated under the terms of a labor agreement.

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