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Searching for Articles by Dean R. Dietrich
Dean R. Dietrich
Attorney
Wausau Office
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Found 173 Results.

Paying For Getting Dressed?

Posted on March 29, 2016, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

A recent decision by the Wisconsin Supreme Court has raised the question whether municipalities need to pay employees for the time they spend getting dressed for work.  In the recent decision of United Food and Commercial Workers Union Local 1473 v. Hormel Foods Corp. (March 1, 2016), the Wisconsin Supreme Court affirmed a trial court decision that the company was required to pay employees for time spent putting on and off required sanitary clothing and personal equipment that was necessary to insure compliance with Federal Regulations regarding sanitary conditions for canning of food products.  The Supreme Court held that the “donning and doffing time” was an integral part of the principal activity performed by the employee and indispensable to the performance of work by the employee.  In this case, the use of sanitary clothing and equipment was not only required by company policy but was also required to comply with mandatory federal food sanitation requirements.  Because of this, it was clear that the employees were entitled to compensation for the time they spent putting on and taking off this clothing and equipment. The decision from the Supreme Court is very narrow and is focused around company policies and the manner in which the company decided to comply with Federal Regulations.  While the decision can be distinguished, there is a concern that the principles behind this decision would apply to various activities in a local government setting such as putting on safety equipment for employees working in underground settings or putting on bullet proof vests for police officers and other security type positions.  There is no clear court decision on these situations but the groundwork exists for a potential conclusion that time spent putting on uniforms and safety equipment could be considered time worked. There is no need, at this time, to change the methods for compensating local government employees, however, local governments should be aware of these cases and be sensitive to what policies are adopted by the governing body relating to the use of safety equipment or uniforms as part of the required work responsibilities for an employee.

Is Obesity a Disabling Condition?

Posted on April 14, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the 8th Circuit Court of Appeals addressed whether obesity automatically qualifies as a disability under the Americans with Disabilities Act.  In a decision filed by an applicant for employment who was ultimately denied employment because of his severe weight and body mass index, the Court of Appeals held that obesity (in and of itself) was not a covered condition under the Americans with Disabilities Act.  The 8th Circuit Court of Appeals held that the company could deny employment to an individual who was otherwise qualified to perform the job because of his obese weight because the weight was not considered to be the result of another psychological impairment.  The Court held that an individual’s weight is generally a physical characteristic that qualifies as a physical impairment but only if it falls outside the normal range of acceptable weight and it is the result of a psychological disorder.  Both of these requirements have to be met in order for an individual to be considered suffering from a disability.  If weight is considered outside the normal range but is not the result of some type of underlying psychological condition or disorder, the weight itself would not cause an individual to be considered disabled and therefore protected.  The company was able to show the morbid obesity of the applicant was a physical characteristic but it was not based upon some sort of psychological condition such as diabetes or a mental health disorder and therefore the applicant was not considered protected under the Americans with Disabilities Act.  This is a major victory for employers because it allows the employer to assess whether an individual has some type of a psychological disorder that has resulted in the morbid obesity instead of having to consider an individual as a disabled person simply because of the excess weight of the person.  Many courts have been leaning toward a requirement that morbid obesity be considered a disability in and of itself without linkage to some type of psychological condition.  Employers must be careful, however, to not “perceive” the obese person as having an impairment which could provide protection under the ADA.  Employers should have specific guidelines as to what levels of obesity would be acceptable for positions that are being filled by the company.  For now, employers have some ability to make employment-related decisions without being automatically considered to be in violation of the ADA. 

Agreement Prohibiting Solicitation of Employees by Former Employee may be Unenforceable

Posted on August 23, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the Wisconsin Court of Appeals has raised serious questions regarding non-solicitation agreements that are often included as part of an employment agreement or severance agreement.  A non-solicitation agreement typically prohibits a departing employee from soliciting to hire other employees of your company to go to work for a competitor or for the business the departing employee is engaged in.  Non-solicitation agreements are often included in a non-compete agreement and have been broadly crafted to prevent a departing employee from soliciting other employees to leave your company and go to work elsewhere.  In the court of appeals decision issued on August 17, 2016, the court determined that the non-solicitation language must be reviewed in the same manner as a non-compete agreement.  The agreement will only be valid if the language is reasonably necessary to protect the employer from unfair competition by a former employee.  Under this ruling, courts will review non-solicitation provisions with the same scrutiny as a non-compete clause and consider the geographical area that is covered and the length of time the provision is in effect.  In other words, the non-solicitation clause will only be considered valid and applicable to the departing employee if the provisions are reasonable and necessary for protecting your company from unfair competition.  This means the duration of the non-solicitation prohibition and perhaps a geographical limitation will be subject to review and scrutiny by the court as to whether it is reasonable under the circumstances. In the case in question, the non-solicitation clause was written too broadly because it prohibited the departing employee from soliciting or encouraging company employees “to terminate their employment” or to “accept employment with any competitor, supplier or customer.”  The court held that this language was too broad and provided an unreasonable restriction on the rights of the departing employee to communicate with other company employees about possible employment with another company. This is a court of appeals opinion that may or may not be reviewed by the Wisconsin Supreme Court.  It does require employers to assess their non-solicitation clause in employment agreements to provide some reasonable limitations on the applicability of such a clause to a departing employee.

Payment for Not Taking Benefits – Additional Compensation

Posted on July 5, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent decision in the Ninth Circuit Court of Appeals has highlighted another problem with determining the rate of pay for paying  overtime hours worked by non-exempt employees.  Under the Fair Labor Standards Act, employees are required to be paid time and one-half their regular rate of pay when they work more than 40 hours in a work week.  There is often confusion regarding what is to be included in the regular rate for determining the time and one-half overtime rate.  This recent decision has held that any payments to an employee as cash reward for the employee not taking health insurance or other insurance benefits must be included as part of the regular rate calculation for that employee.  While the payment of cash-in-lieu of benefits would seem to be a benefit to that employee rather than a wage payment, this recent decision has held that the employer must include that payment (typically made on a monthly basis) as part of the regular hourly rate of pay for that employee.  In this Ninth Circuit decision, the Court of Appeals held that the City of San Gabriel was required to pay overtime pay based upon a rate that included the cash-in-lieu of benefits payment for that particular employee.  Thus, if an employer has a benefit that provides that an employee would receive additional monthly compensation if the employee does not take a benefit such as health insurance, that additional monthly payment must be included in determining the regular rate of pay for that employee and then determine the time and one-half overtime rate based upon the regular rate with that additional payment included.  This results in a different overtime pay rate for every employee depending upon whether the employee takes insurance benefits or decides not to take insurance benefits.  This seems counter-intuitive because the company payment for health insurance premiums is not included as part of the regular rate of pay for an employee but the cash payment instead of taking insurance must be included. In this lawsuit, a class action was brought by a group of employees which resulted in a significant payment being made by the city in the form of back wages for the failure to include this payment as part of the regular rate for the group of employees.  Employers should verify how they are handling this type of payment as part of their regular payroll calculations.  Employers need to consider this decision and analyze whether or not they need to adjust the overtime pay rate for certain employees if the company has this cash-in-lieu of benefit payment made to certain employees.

Do Your Supervisors Actually Make Decisions?

Posted on March 31, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent decision of the Fourth Circuit Court of Appeals puts a spotlight on that question:  Do your supervisors exercise discretion when supervising others?  This question is important because the recent Court of Appeals decision held that several employees who were identified as supervisors actually did not exercise sufficient discretion to meet the definition of supervisory status and a union election result was allowed to continue because the employees that were identified as supervisors did not actually qualify as a supervisor.  The nuances of this Court of Appeals decision as it relates to an election for union membership is not as important as the findings by the Court that the four employees did not qualify as a supervisor under the NLRB definition.  The Court of Appeals held that these employees did not exercise discretion when performing their supervisory duties and therefore did not meet the definition of a supervisor.  One example was that employees were given blank discipline notices (like written reprimands) and told to issue those written reprimands every time an employee violated a company policy or directive.  The Court found that this lack of discretion in deciding whether or not to issue a discipline notice showed the employees actually were not supervisory and did not exercise the appropriate level of supervisory discretion. This decision was rendered in a union election case but it re-emphasizes and reinforces the narrow view of what is a supervisor under federal law.  The conclusion is that the employee must exercise discretion and be given the authority to use that discretion when supervising employees and making employment-based decisions in order for the individual employee to qualify as a supervisor.  If the employee has no discretion or is directed by higher-level management in all instances, the individual employee may not be considered a supervisor and may be eligible for union representation and other types of  protections.  Employers should be careful to make sure their individual employees do exercise discretion while acting as a supervisor.

Tortious Interference with Contract/Employment Relationship/Truthfulness of Statements/Defense to Tort Claim

Posted on November 2, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent ruling from the Seventh Circuit Court of Appeals extended the notion of “truth as a defense” to a tortious interference with employment claim under Wisconsin law.  This establishes a sound defense to a claim by an employee against other employees that they have tortiously interfered with the employee’s contract for employment with a business. In this action, a deputy director of the Marshfield Clinic Research Foundation brought suit against other individuals within the Marshfield Clinic System alleging these individuals made false and improper statements to the Board of Directors of the Clinic which resulted in the employee being terminated from employment.  The Court of Appeals found the statements made by the other employees were truthful and therefore were considered privileged statements that could not be used to support a claim by this deputy director for tortious interference with his employment by Marshfield Clinic.  The defense that statements were substantially true would normally be used as a defense in a libel/slander claim, but under Wisconsin law, there is an exception to a claim of tortious interference with contract (employment) if the claim is based upon statements that were true or substantially true.  This exception prevents an individual from pursuing legal action alleging tortious interference if it is shown that the statements being relied upon were in fact true or substantially true.  No Wisconsin court has ruled on this legal argument; however, the Seventh Circuit Court of Appeals wrote in its decision that it believes that the Wisconsin Supreme Court would apply the same exception if the matter were presented to the Court in a state proceeding.  This ruling gives protection to employees against claims by others in the workplace provided the employees are engaging in truthful conduct and relying upon truthful information in the statements being made that affect the employment rights of another person.

Disability Discrimination Lawsuits can be Expensive

Posted on March 21, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent settlement of a disability discrimination lawsuit against AT&T shows that a discrimination claim can be an expensive proposition.  AT&T settled a disability discrimination lawsuit brought by the Equal Employment Opportunity Commission by paying $250,000 to the Commission and re-instating an employee.  The EEOC filed suit against AT&T for failing to provide a reasonable accommodation to a visually-impaired employee who had worked for 14 years for the company.  The employee suffered from a visual impairment and requested the use of adaptive technology software which would allow the employee to use computers and computer programs to perform his job as a switch technician for the company.  The company never responded to the request for an accommodation and removed the employee from his position and did not allow him to return to work because of his medical condition.  Because the company failed to respond to the request for an accommodation, the EEOC brought suit.  After commencing the suit, the parties participated in conciliation which resulted in the payment of $250,000 and the re-instatement of the employee with a provision for the adaptive technology equipment that the employee requested.  The company also was required to conduct annual training of its managers and post a notice in the workplace regarding the settlement.  This case may be more egregious than many because the company appeared to have completely ignored the request for accommodation by the employee.  The case also shows the importance of addressing an accommodation request and the potential for significant damages being paid if the employer fails to do so.  Employers need to be responsive and make sure they address accommodation requests made by an employee.

Collegiality in the Workplace – Not Authorized by NLRB

Posted on July 13, 2016, Authored by Dean R. Dietrich, Filed under Employment

Collegiality in the workplace is the goal of every employer in order to provide the proper atmosphere for productive employees.  Many employers have taken this desire to heart by publishing rules that encourage collegiality amongst employees and prohibit conduct that would adversely affect morale in the workplace.  A recent ruling by the National Labor Relations Board in a hospital setting again throws cold water on an attempt to ensure a high level of collegiality and promote productivity in the workplace.  In the April decision of William Beaumont Hospital (363 NLRB No. 162), the NLRB struck down a number of provisions in the code of conduct used by the hospital to encourage collegiality and cooperation amongst employees in the workplace.  The NLRB found that various provisions of the code of conduct of the hospital were a violation of the Section 7 rights of its employees because the work rules tended to “chill” the employees’ exercise of their right to engage in protected, concerted activity. The NLRB found that various provisions of the code of conduct were unlawful under Section 8(a)(1) of the National Labor Relations Act.  The code of conduct prohibited such things as: conduct that “impedes harmonious interactions and relationships”; verbal comments or physical gestures directed to others that exceeded the bounds of fair criticism; negative or disparaging comments about the moral character or professional capabilities of an employee or physician made to employees, physicians, patients, or visitors; behavior that is disruptive of maintaining a safe and healing environment or that is counter to promoting teamwork. The NLRB also found that policies which prohibited the following conduct were also in violation of the NLRA: rule prohibiting employees from conduct that brings discredit on the System or Facility or is offensive to fellow employees; conduct speaking negatively about a coworker or the hospital; conduct disclosing business-related and employee information. The NLRB felt that employees would reasonably construe these particular rules of conduct to inhibit employees from expressing their opinion or engaging on concerted activity because the conduct that was addressed was so ambiguous and overly broad such that employees did not know what was acceptable behavior and what was inappropriate behavior.  As a result, the NLRB struck down these various rules of conduct as being unlawful under the National Labor Relations Act.  Employers must be careful in drafting workplace policies to provide enough clarity so a rule is not stricken if challenged before the National Labor Relations Board.

Christmas in July?

Posted on March 18, 2016, Authored by Dean R. Dietrich, Filed under Employment

I am afraid to report that many employees will be receiving a significant Christmas present in July.  The latest word is that the new FLSA regulations regarding exempt status will be issued in July and will be subject to a 60-day review period by Congress.  This means we will be faced with addressing the exempt status issue much sooner than anticipated. As you all know, the proposed regulations would significantly increase the annual salary that must be paid to an employee in order to qualify for exempt status under the Fair Labor Standards Act.  The annual salary will likely be set at $50,400 effective in September and will be indexed to increase every year.  An employee must be paid this annual salary in order to meet the salary test element of a determination that an employee is an exempt employee and is not eligible for overtime pay at the time and one-half rate.  The “duties” test will likely not be amended and will continue as existing in the past although the final version of the DOL Regulations has not been issued publicly.  The Regulations are being reviewed under an administrative review procedure before being published but every indication is that they will be published in July and effective in September.  The regulations affect every employer that has determined that employees in their company are exempt from overtime requirements because they qualify under the executive employee exemption, administrative employee exemption or professional employee exemption.  The major concern is in the administrative employee exemption area where an individual is part of the management team but may not be paid the higher salary that will be required as of September.  This means the company must either increase the annual salary or treat the employee as an hourly employee and compensate for hours worked in excess of 40 hours per week.  Under that determination, the major concern is off-hours worked which is expected of the administrative employee but not counted toward the 40-hours of work in the past.  Employers have been waiting for this “bomb to drop.”  The time is coming and employers must pay attention to the exempt status of its employees to avoid overtime pay liability.

Perceived National Origin Discrimination Can be Pitfall for Employers

Posted on December 12, 2016, Authored by Dean R. Dietrich, Filed under Employment

I have always struggled with the notion of “perceived” discrimination and whether an employer has actually discriminated against an employee because they perceive the employee to be disabled or of a different national origin or something else.  The EEOC recently issued updated Enforcement Guidance on national origin discrimination and concluded that national origin discrimination includes discrimination “because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”  The Guidance went on to conclude that an employer is in violation of Title VII if the employer’s actions “have the purpose or effect of discriminating against persons because of their real or perceived national origin.”  See www.eeoc.gov/laws/guidance/national-origin-guidance.cfm.  The Wisconsin Fair Employment Act has the same provisions and strongly suggests that an employer can be accused of discrimination if they perceive an individual employee to be of a certain national origin.  As we look at the variety of persons and actions in the workplace, this can become a very dangerous area of concern.  Managers can perceive an individual to be of a certain race or national origin and then allegations can be made that the employer discriminated against that individual because of the perceived national origin status.  As we strive to avoid any knowledge or background regarding an individual’s national origin, managers are left with little guidance or understanding of a particular national origin of an employee and may make assumptions that should not be made. I am not advocating that we ask each of our employees what their national origin is, but I am suggesting that managers receive training on how to avoid perceiving an individual to be of a particular race or national origin and employers should reaffirm their position that national origin discrimination is not part of the fabric of the company. There are cases in the federal court that limit the employer’s liability for things such as perceived discrimination based upon national origin.  I am not sure these cases will help a Wisconsin employer based upon the language of the Wisconsin Fair Employment Act.  The challenge for employers is to make sure that employment decisions are made based upon the facts and not based upon a perception of an individual’s national origin or even a perceived disabling condition.  Employers should make sure to train their managers to understand and avoid making decisions based upon perceptions rather than facts. 

NLRB Blogs

Posted on April 13, 2016, Authored by Dean R. Dietrich, Filed under Employment

I have written a number of blogs regarding the position of the National Labor Relations Board relating to protected speech for employees.  The NLRB and its General Counsel have been very aggressive in concluding that the conduct of employees should be considered protected free speech and an employee may not be terminated for such conduct.  Rulings have gone so far as to conclude that a ranting by an employee using foul language would still qualify as protected speech and the employer could not terminate the employee for that conduct.  Several events over the last month have turned the tables somewhat on the NLRB.  The Regional Director for the NLRB located in Philadelphia was suspended without pay for thirty days at the end of December because of his ties to a pro-union fund that was used to “educate and inspire the next generation of law students to become advocates for workplace justice.”   Known as the Peggy Browning Fund, this non-profit organization works to encourage law students to be advocates for pro-employee rights and union rights.  After complaints were raised to the Congressional delegation from the Philadelphia area, the Regional Director was suspended for a period of 30 days for his connection to this non-profit organization. Further, a recent communication to Regional Directors acknowledged the NLRB was facing a budget shortfall for the rest of the fiscal year (through September 30) and suggested a number of cost saving measures that would make the Agency more flexible in settlement negotiations with an employer.  In other words, the NLRB is in need of money so it may be willing to compromise a case if the employer agrees to pay certain amounts of money.  It is even suggested the NLRB will be more flexible in determining what type of back pay would be given to employees if there is a conclusion that an unfair labor practice charge will be filed.  The memo also suggests the NLRB agents should use alternate investigative methods such as telephone affidavits and video conference interviews instead of in-person interviews when investigating a complaint of unfair labor practices.  The NLRB, of course, says these strategies will not change the enforcement authority of the Board but perhaps the investigators will become more understanding of the employer position because of this need to reduce expenses. Employers should not rely upon the potential change in investigative techniques to assume success but perhaps the Board will be more understanding and willing to consider the employer position going forward.

What Does ADA Accessible Mean?

Posted on April 4, 2016, Authored by Dean R. Dietrich, Filed under Employment

In a recent blog, I wrote about the potential of litigation requiring a business to make its website ADA accessible.  I noted that it is still not clear what a business may be required to do under this legal argument.  A recent court decision in California has not clarified what a business may be required to do but it has certainly identified the heavy price tag that could apply if the website is not accessible. A luggage retailer that sold luggage on its website was required to pay $4,000 to the plaintiff and pay in excess of $100,000 in attorneys’ fees based on a finding that the website of the business was not ADA accessible.  There was no indication in the court decision as to what steps needed to be undertaken to make the website accessible for someone who was visually impaired although the complaint seemed to suggest that the website was not designed to be read by screen-reading software that a blind person would use to help read printed materials on a website.  In a very brief decision, the California trial court held that the company had to pay $4,000 to the plaintiff and take steps to make its website more readily accessible to visually impaired persons.  The court also ordered the company to pay more than $100,000 in attorneys’ fees to the plaintiff as part of the remedy provided by the court. This is a trial court decision that may or may not be appealed but it shows the potential for claims that a company website is not ADA accessible and therefore in violation of Title III of the Americans With Disabilities Act.  Companies (and local governments) need to look at this issue and consider if changes should be made to make its website more useable by a disabled person.

Withdrawal of Recognition of Union – Automatic Complaint

Posted on June 29, 2016, Authored by Dean R. Dietrich, Filed under Employment

Recent action by the National Labor Relations Board has challenged a long-standing labor precedent that may directly affect Wisconsin companies because of the implementation of the Wisconsin Right-to-Work Law.  Because of the Right-to-Work Law, many companies with union representation of its employees are learning the employees no longer support the union and are withdrawing the right of the union to insist upon union dues taken from the employee paycheck.  In some instances, this action has shown that a majority of the employees no longer want to be represented by the union.  Unfortunately, recent action by the National Labor Relations Board has limited the right of an employer to withdraw its recognition of the union representing company employees.  General Counsel Richard Griffin of the NLRB has ordered that the NLRB issue a complaint against the company every time a company decides to withdraw recognition from a union unless the union has been decertified by a secret ballot vote held by the NLRB.  As a result, any employer that decides to withdraw recognition of a union based upon information such as a majority of employees deciding not to have dues deducted will be subject to an unfair labor practice complaint by the NLRB even though the prior precedent of the NLRB allowed for withdrawal of recognition if the company had “objective evidence” the employees no longer wish to be represented by the union.  The withdrawal of dues deduction authorization by a majority of the employees would be that type of “objective evidence” that would allow for a company to withdraw its recognition of the union. As a result of this directive from NLRB General Counsel, any company is at risk of a ULP complaint if they decide to take action to withdraw recognition of the union even though the employees have provided clear evidence that they do not wish to be represented by the union.  It is likely this change in policy of the NLRB will be litigated in the courts but for now, any company that voluntarily withdraws recognition of the union will be subject to litigation from the NLRB.

Caution, Caution – Are You a Joint Employer?

Posted on January 28, 2016, Authored by Dean R. Dietrich, Filed under Employment

Recent guidance from the Department of Labor has created a stir regarding two or more businesses that could be considered joint employers and thereby held jointly and severally responsible for complying with minimum wage and overtime pay requirements of the federal Fair Labor Standards Act.  Under guidance issued by Wage and Hour Division Administrator, Dr. David Weil, the Department of Labor has focused on “fissured industries” and identified specific situations where businesses will be considered joint employers and therefore jointly liable for obligations under the FLSA.  Some examples of these types of businesses are shared-employee situations, staffing company usage or using a large number of independent contractors to perform routine type work at a company.  Under the Interpretation Guidance, the Department of Labor/Wage and Hour Division has said that the Department will look at various situations with a great deal of scrutiny to determine whether two businesses are actually joint-employers.  One setting involves “horizontal” joint employment where an employee performs work for two different companies that are setup in some fashion to be considered independent companies but have many indicia of joint ownership.  Under these circumstances, both companies will be considered responsible for overtime pay liability.  Another potential area involves “intermediary employers” where one company will hire another company to provide workers and the workers will likely be considered employees of both companies.  Much will depend upon the amount of control exercised by the two companies.  Under these circumstances, both companies will be considered responsible for overtime pay liability.  If the contracted employee is actually governed by the working conditions of the contracting employer, there will be a strong likelihood of joint employer status and then potential joint liability under the FLSA.  This pronouncement from the Department of Labor Wage and Hour Division means there will be a great deal of scrutiny regarding various employment settings where the individual employees are not directly employed by the company that is having the work performed at its work site.  Companies need to be careful about the use of staffing agencies in order to create separate employer status and avoid the joint liability for compliance with the Wage and Hour Division regulations. 

Will Employers Be Surprised in July?

Posted on February 5, 2016, Authored by Dean R. Dietrich, Filed under Employment

Recent statements from the Department of Labor Solicitor Patricia Smith have suggested that the new regulations being considered by the Department of Labor on the white collar exemptions from overtime will be published in July and become effective in September.  This is an earlier date than was originally hinted at by Solicitor Smith in prior statements.  While the effective date of proposed new regulations on FLSA exemptions is unclear, the content of the regulations are well known and publicized.  Effective sometime this year (likely September), the overtime exemptions for administrative employees and professional employees will be modified to require that an employee receive a salary of $970 per week instead of the current $455 per week.  This means that a number of mid-level employees may now be subject to overtime pay requirements if they do not meet this salary level.  There has been talk about changing the “primary duties” test which is part of the exemption requirements but to date, nothing has been published or announced about the primary duties requirement. Employers need to be looking closely at this issue.  Employers need to decide whether those currently overtime exempt employees whose salary is below $52,000 a year will now begin to receive time and one-half pay for hours worked over 40 hours per week or will have their salary adjusted to the higher level.  Employers also need to have a clear understanding of the work being performed by these mid-level employees to make the determination on how best to proceed.  Employers must not forget the definition of “time worked” and remember that working during non-office hours (i.e. communicating by e-mail after work) must be counted as time worked for purposes of the 40 hour per week limitation and the requirement for overtime pay. This change in the annual salary required for exempt status may be more critical than employers think.  This is especially true if the employer expects these mid-level employees to be available at any time to respond to questions or address work-related issues.  Employers must be prepared to properly address this issue and avoid overtime liability.

Hairstyle Is Not a Protected Category but Sexual Orientation Likely Is

Posted on September 20, 2016, Authored by Dean R. Dietrich, Filed under Employment

Several recent decisions have opened the door to further scrutiny regarding discrimination and the basis for a finding of discriminatory conduct by an employer.  These decisions continue to show the volatility of discrimination claims and determinations of whether or not an employee can claim discrimination based on company actions. In one court decision, it was determined a company policy that required professional hairstyles on employees did not rise to a per se violation of Title VII on the basis of race discrimination.  In this case, the company had a policy requiring professional hairstyles that was interpreted to mean dreadlocks was not an appropriate hairstyle.  The EEOC pursued a claim against the company arguing that the hairstyle policy was a per se violation of Title VII because unacceptable hairstyles could be directly attributed to individuals of a particular national origin.  The EEOC did not argue that the company policy had an unequal adverse effect on a particular race but rather argued that the establishment of such a policy was in direct violation of federal law.  The Federal Court of Appeals refused to extend the protections of Title VII for race discrimination to such a level of protection simply based upon the policy developed by the company.  Rather, the Court of Appeals held that a policy of that type did not constitute per se discriminatory conduct and the EEOC failed to show that the policy was applied in a manner that had discriminatory effects on a particular race or group of employees.  The Court held that the protection of race discrimination did not include general policies requiring a professional hairstyle for all employees of the company. The EEOC has recently issued a bulletin confirming its position that members of the LGBT (Lesbian, Gay, Bi-sexual and Transgender) community were protected from employment discrimination under Title VII of the Civil Rights Act.  The EEOC will pursue claims against companies that discriminate based upon any type of sexual orientation, especially when used in the employment selection process.  A recent decision from the 7th Circuit Court of Appeals, however, held that sexual orientation was not a protected category under the sex discrimination protections of Title VII.  This decision runs contrary to the recent pronouncements from the EEOC and therefore, EEOC is pursuing an appeal of the decision.  This debate over whether sexual orientation is prohibited under Title VII is an interesting intellectual endeavor, however, most states prohibit discrimination based on sexual orientation within the state discrimination laws, so companies in many states around the country must comply with such laws and avoid sexual orientation discrimination.  Sexual orientation discrimination is clearly prohibited under the Wisconsin Fair Employment Act, so Wisconsin employers need to be careful in making decisions about hiring and must ensure a harassment-free workplace as it relates to employees with different sexual orientation backgrounds.  Transgender issues have become quite popular of recent days, however, there have not been decisions at the state or federal level regarding protection against conduct in the workplace directed at transgender employees.  Employers must, however, be sensitive to this issue and take steps to prevent inappropriate conduct that interferes with the sexual identity of its employees.

More Overtime or Not?

Posted on December 13, 2016, Authored by Dean R. Dietrich, Filed under Employment

The table is set for a fight over whether or not more employees will be eligible for overtime pay as a result of the Department of Labor regulation changing the qualifications to be an exempt employee.  President-Elect Trump has nominated Andrew Puzder to serve as Secretary of the Department of Labor.  He has made it clear that he opposes the changes to the overtime exemption requirements that would expand the number of employees eligible for overtime pay.  On the other side, the Fifth Circuit Court of Appeals agreed to accelerate the appeal by the Department of Labor of the injunction blocking the implementation of the revised overtime rule for white collar exemptions.  Briefing on the appeal will be done by the end of January, opening the door for a court decision as Mr. Puzder takes office. Mr. Puzder could order the Department to stop working on a brief to the Fifth Circuit Court of Appeals when he takes office, but that may be after the Department of Labor has submitted its brief in support of the revised overtime rule.  It will be difficult to “unwind” something that has been processed by the Fifth Circuit Court of Appeals.  Of course, the Fifth Circuit Court of Appeals could reverse the Federal District Court decision, but then the new Department of Labor Secretary could take steps to delay any enforcement proceedings against a company that did not comply with the overtime pay requirements and salary adjustments Employers are put in a very difficult position by this anticipated controversy over whether or not the revised overtime rule should be implemented.  Many companies have already proceeded to increase the salary of certain employees based upon promises made during the course of discussions on this topic over the past year.  Other employers have placed everything on hold to see how this controversy unfolds.  There is no correct answer to what steps to take and much depends upon the “culture” that an employer wishes to maintain in their work setting. Everyone needs to continue to monitor this situation as there can be many twists and turns over the next several weeks.

Assigning Bathrooms – Reasonable Accommodation?

Posted on May 12, 2016, Authored by Dean R. Dietrich, Filed under Employment

There has been a great deal of media coverage regarding how to accommodate a transgender employees’ use of bathrooms.  Logic suggests that maintaining private bathrooms that would be available to any employee would be the most reasonable way to address this situation in the workplace.  A 2015 decision in a case brought by the Equal Employment Opportunity Commission unfortunately held that providing a private bathroom was not a reasonable accommodation to protect the interests of a transgender employee.  The theory behind the decision was that the transgender employee should be afforded access to the available bathroom for the gender that the employee identifies with and a restriction to using a private bathroom was an unreasonable restriction for the self-identified transgender employee.  Transgender employees must have the same access to restrooms as any other employee in the workplace. This seems like an overly broad reading of the applicable federal and state laws that prohibit discrimination against an individual based upon sex or sexual orientation.  The law and decisions in this area are undergoing a great deal of review at this time, so it is hard to predict what would be the most appropriate way to address transgender employees and access to bathrooms.  The best alternative for an employer, at this time, is to not impose any limitations on access and react only if complaints arise from others in the workplace.  If a complaint is brought by other employees objecting to the transgender employee’s use of the designated restroom, the company may be obligated to address the situation - but until that occurs, it is most appropriate to remain silent on the topic.  Ruder Ware attorneys will monitor the pending litigation and provide further advice when things become clearer.

Recent Disability Discrimination Cases Outline Employer Responsibilities

Posted on November 4, 2016, Authored by Dean R. Dietrich, Filed under Employment

Two recent decisions regarding disability discrimination have outlined an employer’s responsibilities when dealing with a potential claim of disability and need for accommodation.  These decisions offer reminders for employers of the importance of recognizing potential disability claims and addressing them promptly. In the first decision, the Eighth Circuit Court of Appeals concluded that an employee had made an implied request for an accommodation even though the employee did not specifically state that she was requesting an accommodation because of her medical condition involving weakness in her back.  The employer required this employee, along with many others, to undergo testing both for competence and physical ability to perform their duties and the employee responded with a medical certification from her physician indicating she was not able to perform the agility testing and needed four months of physical therapy before being able to perform the physical agility test.  The employer terminated the employee because of the inability to show that she was able to perform the various duties of her position and did not acknowledge or address the doctor’s note indicating the need for additional time.  The Court of Appeals concluded that the submittal of the doctor’s note was an implied request for an accommodation (of four more months of physical therapy) and that the employer did not reasonably accommodate this implied request for an accommodation.  Employers are reminded that these types of doctors’ notes will likely be considered a request for an accommodation that must be reviewed and analyzed by the employer to determine whether the accommodation request is reasonable and appropriate. In a second decision, the highest Court of the land, the U.S. Supreme Court, refused to consider a ruling by the same Eighth Circuit Court of Appeals which held that an applicant for a position did not have either actual or “regarded as” disability based upon obesity.  A conditional offer of employment was rescinded after the employee failed a pre-employment physical because the employee suffered from Class 3 obesity and therefore was considered not qualified for the position.  The Eighth Circuit Court of Appeals held that the applicant did not suffer from a physical impairment that was caused by an underlying psychological disorder or condition and therefore the obesity condition of the applicant did not rise to the level of a disability.  The Eighth Circuit also concluded that the applicant was not “regarded as” being disabled because the Americans with Disabilities Act did not support a claim of disability discrimination based upon a perception that a physical condition would be defined as a disability.  Other Circuit Courts have found that obesity is a disabling condition because the employer has assumed that the employee is not able to perform the duties of the position due to the obesity diagnosis.  The United States Supreme Court did not take this case which thereby supported the ruling from the Eighth Circuit that a perceived disability based upon a physical characteristic did not rise to a protected condition.  The case law for now is settled that gross obesity does not automatically constitute a disabling condition but employers must be careful how they view the medical condition of an applicant to avoid potential liability for discrimination claims. The area of disability discrimination continues to be in a state of flux as courts throughout the country take differing views of what constitutes a disabling condition and whether the employee is protected under the ADA.

Is Your Website Discriminatory?

Posted on March 22, 2016, Authored by Dean R. Dietrich, Filed under Employment

Yes, there have now been a number of lawsuits filed over whether or not a company’s website is accessible under the Americans With Disabilities Act.  In many of these cases, the Department of Justice has joined in the lawsuit seeking to enforce Title III of the Americans With Disabilities Act.  Companies are now considering whether or not they have a properly accessible website that does not discriminate against individuals with a disability. Title III of the Americans With Disabilities Act prohibits public accommodations from discriminating against an individual on the basis of a disability.  A number of businesses are considered public accommodations such as businesses that are engaged in retail sales or providing of professional services.  Hotels and motels are another type of public accommodation as well as educational institutions and entertainment and exhibition facilities.  Others may be considered public accommodations but there has not been a lot of litigation over that definition. If a business is considered a public accommodations business, it is obligated to insure that its place of business allows for the “full and equal enjoyment” of the goods and services offered by the public accommodation for individuals who suffer from a disability.  This is being interpreted that businesses that are considered public accommodation businesses must make sure their website promoting their business is equally accessible to anyone accessing the website whether or not the individual has a disability. It is also not clear what is meant by having a website that is accessible.  Some suggestions include the use of closed captioning and other types of communication assistance when the website shows video or audio components as part of its communication to the public.  Other examples include making sure the website is fully functional for an individual accessing the website by a keyboard so that it operates on a timeline that allows sufficient time for someone to read and use the content of the website.  It is also suggested that the content on the website must be easily understood and readable for individuals who may suffer some type of disabling condition. One of the main issues to be litigated is whether a website is considered a place of the public accommodation business and thereby subject to the ADA requirements.  The Department of Justice will not be issuing regulations on this topic until 2018 so in the meantime, allegations are made and lawsuits are filed challenging the accessibility of a company’s website.