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Searching for Articles by Dean R. Dietrich
Dean R. Dietrich
Attorney
Wausau Office
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Found 177 Results.

Working at Home May Not be a Reasonable Accommodation

Posted on January 8, 2015, Authored by Dean R. Dietrich, Filed under Employment

...In this decision, Taylor-Novotny v. Health Alliance Medical Plans, Inc. 7th Cir., No. 13-3652, November 26, 2014, the company had a policy that allowed employees to work from home on...

NLRB Changes Standard – Two Chances to Protect Employee Rights

Posted on December 19, 2014, Authored by Dean R. Dietrich, Filed under Employment

A decision issued last week by the National Labor Relations Board significantly changed the “deferral standard” that was used by the NLRB when considering whether a grievance arbitration award properly addressed the protection of employee rights to communicate about union activities.  In the recent decision of Babcock Wilcox Construction Co., Inc. the NLRB decided that it will apply a new standard if it is considering whether a grievance arbitration award properly protects the Section 7 rights of an employee under the National Labor Relations Act. Under the previous standard, the NLRB would defer an issue to grievance arbitration and rely upon a grievance arbitration award between the employer and the union if the issue in the arbitration award was “factually parallel” to any claim of an unfair labor practice for violating Section 7 rights. In other words, the NLRB would, with some regularity, defer to a grievance arbitration award and not pursue a separate unfair labor practice charge alleging a violation of employee rights. The employer would therefore litigate a case once before the grievance arbitrator and have a decision made as to whether or not the conduct properly alleged a violation of Section 7 rights. Under the new standard, an employer may have to litigate a claim of violation of Section 7 rights in two forums. One forum would be the grievance arbitration process and the other forum would be an unfair labor practice proceeding before the NLRB. The new standard adopted by the NLRB will require the employer to prove that the NLRB should properly defer an unfair labor practice claim to arbitration by showing that the statutory issue was properly presented to the arbitrator and the arbitrator considered the statutory requirements for an unfair labor practice charge in the grievance arbitration proceeding. In other words, the employer will have to show that the case was properly litigated under the unfair labor practice/Section 7 rights criteria before the grievance arbitrator, otherwise the NLRB will continue to pursue a claim against the employer even though the issue has already been litigated in a grievance arbitration forum. This means employers may have to litigate a matter twice in order to prove they did not violate an employee’s rights.  This adds another tool to employees and their union representatives for bringing a claim against the company. The claim can be litigated in the grievance arbitration forum and the NLRB unfair labor practice forum at the same time or sequentially depending upon the various schedules. These types of cases often arise when a company is dealing with discipline against a local union steward with the union alleging that the employee was being disciplined or terminated because of their union activities. This may result in a more “protected” status for employees who serve as union stewards.

Dealing with Employee Facebook Postings can be Dangerous

Posted on December 3, 2014, Authored by Dean R. Dietrich, Filed under Employment

A number of recent decisions have laid out some of the risks related to employee Facebook postings and decisions by the employer to terminate an employee for inappropriate statements on Facebook. These decisions have involved constitutional challenges to a termination of a public employee for liking the Facebook page of a particular candidate for office, and National Labor Relations Board decisions holding that Facebook postings were so egregious and insubordinate they justified the termination of an employee for such conduct. Employers must recognize that the NLRB has rendered a number of decisions over the past several years that have limited the right of an employer to terminate an employee for statements made on Facebook (or other social media sites) that are critical of the employer or how the employer conducts business. The NLRB has held that these postings by an employee are considered protected under Section 7 of the National Labor Relations Act as protected speech because they involve commentary about the working conditions of the employee. A recent decision by the NLRB, however, held the postings by two employees were inappropriate and the company acted properly in terminating the employees. The postings showed a clear intention to engage in insubordinate conduct trying to disrupt the workplace and also involved the use of profane language when commenting about the company and the anticipated activities of the employees. The NLRB held that the statements had such “pervasive advocacy of insubordination” that the statements lost their protection and could properly form the basis for the termination of the employees. In other words, the employees were indicating they were going to act with such aggressive insubordinate activity to disrupt the workplace and therefore the company had a basis to take disciplinary action and terminate the employees.  Another recent decision held that a public employer could not terminate an employee who “liked” the posting of a candidate in the Sheriff’s campaign. When the incumbent sheriff was re-elected, he pursued the termination of the deputy sheriff that liked the Facebook campaign page of the opponent. The Fourth Circuit Court of Appeals held that this statement (the “liking” of the Facebook page by one-click) was considered protected speech under the First Amendment and could not form the basis for a decision to terminate the employee. Terminations for exercising the right of protected free speech are not allowed under the Constitution. These are examples of the types of cases that have arisen regarding employee conduct on social media sites. Employers must be very careful if they are considering some type of adverse employment action against an employee because of Facebook postings. In many instances, the employer will be at great risk of either a finding from the NLRB or a court that the determination based upon the Facebook posting was not appropriate. Caution should be exercised in all instances.

Adjust Job Duties

Posted on November 3, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the 7th Circuit Court of Appeals has reaffirmed the duty of employers to consider minor adjustments to job duties as a reasonable accommodation under the Americans with Disabilities Act. This decision, while dealing with the ADA, reinforces the position taken by the Equal Right Division in Wisconsin that adjustment of work duties assigned to an employee, even on a permanent basis, may be a reasonable accommodation that must be made by an employer. In this case, an employee was required, as part of her regular duties, to push a wheelchair with a resident during the course of the workday to a location where the employee was a hairdresser for residents of a nursing home. The employee suffered a permanent injury that prevented her from pushing the resident in a wheelchair, so the employer terminated the employee for inability to do the normal duties of her position. As the case wound its way through the courts, a motion for summary judgment was denied by the 7th Circuit Court of Appeals (which covers Wisconsin) so the matter has been sent back to the trial court on the factual issue of whether the wheelchair pushing responsibility was an essential function of the job held by the employee. One of the findings from the 7th Circuit decision was that "job restructuring" is one of the accommodations that an employer must consider under the Americans with Disabilities Act. This has always been the law in Wisconsin because of court statements in various decisions suggesting that an employer must modify the job duties of a disabled employee as part of the reasonable accommodation requirement under the Wisconsin Fair Employment Act. In fact, some courts have suggested the employer would be obligated to modify up to 80 percent of the employee's job duties as part of the duty to accommodate a disability. That is not the ruling in the 7th Circuit decision; however, the new decision does support this notion of a duty to adjust job responsibilities as part of a reasonable accommodation. Every case must be considered on its own merits depending upon the job tasks and the limitations the employee may have. Employers must be very careful when considering termination of an employee because they cannot do all of the job duties of the position. That may not be the right decision depending upon the facts.

NLRB Attacks Independent Contractor Status

Posted on November 25, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the National Labor Relations Board has attacked the test that is generally used to determine whether or not an individual is an independent contractor or is considered an employee eligible for voting to be represented by a union. In the recent decision of FEDEX Home Delivery, 361NLRB No. 55 (2014), the NLRB issued a decision that departed from recent federal court decisions and held that the FEDEX drivers were not independent contractors because they were not “rendering services as part of an independent business.” In other words, the NLRB found that the company exercised a high-level of control over how the work was performed by these drivers and therefore held they were not an independent contractor but rather an employee of the company eligible to vote for union representation. The importance of this decision is that it contradicts the decisions made by several federal courts that relied upon the individuals “entrepreneurial opportunity for gain or loss” as a very important factor in determining whether someone was an independent contractor. This factor centered around the opportunity of the individual to engage in a business activity and enjoy the fruits of performing the work as an independent “entrepreneur” that was working for himself rather than for a company. This “entrepreneurial opportunity for gain or loss” test is what had been relied upon by various federal courts to hold that an individual was an independent contractor because they enjoyed the fruits of their labor rather than simply working for someone else. There are a number of tests regarding independent contractor status. One test applies to worker's compensation benefits, another test applies to unemployment compensation benefits and another test applies to whether the employee is covered under the Fair Labor Standards Act. All of these tests center around whether the employee is engaged in a separate business or whether the company has the right to control the activities and work of the individual. The movement by the National Labor Relations Board focuses more on the right to control test and is another weakening of the ability of a company to operate its business in the manner in which it is best suited which could include hiring independent contractors to perform work that also benefits the company.  It is not often this issue arises in existing companies but caution must be exercised because the efforts of the NLRB are to find that individuals are employees of the company and therefore eligible to vote for union representation. Employers should be careful in their characterization of an independent contractor to make sure that all of the tests are met to avoid potential employee liability.

Using "Like" on Facebook may be Protected Speech

Posted on September 5, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the National Labor Relations Board (August 25, 2014) held that an employee using the "Like" feature on a Facebook page to show support for comments by another employee about the conduct of the company payroll system constituted protected speech under the National Labor Relations Act. The Board held that the termination of the employee for actions taken on the Facebook page was an unlawful termination and contrary to the right of the employee to engage in protected speech about working conditions at the employee's workplace. This is one of the first decisions regarding social media but seems consistent with past NLRB decisions that gave great deference to employee speech. In this decision, two employees were terminated for the actions they took to "Like" a comment by a former employee who complained about the tax-withholding calculations made by the company. The Board found that these expressions by the two employees should be considered protected speech and they were unlawfully terminated for exercising their right to protected speech. The Board also found that the policy of the company which prohibited inappropriate discussions about the company, management or other workers as part of the "Internet/Blogging" policy was unlawful and inappropriately restricted the protected speech of company employees. These decisions are Three D LLC d/b/a Triple Play Sports Bar and Grille v. Sanzone, case number 34-CA-12915; and Three D LLC d/b/a Triple Play Sports Bar and Grille v. Spinella, case number 34-CA-12926. Employers must be very careful about the use of "off duty" conduct as a basis for terminating an individual employee. Companies should be able to protect their reputation and prohibit employees from making derogatory statements about the company on Internet communications but this right is subject to significant review and challenge by the National Labor Relations Board. Caution is the appropriate word when considering terminating an employee for their words on the Internet or Facebook.

New Year Present from EEOC – Review of Wellness Programs

Posted on December 22, 2014, Authored by Dean R. Dietrich, Filed under Employment

As we think about Christmas presents, the EEOC recently announced its initiatives for the next year. One of those initiatives will be a review of wellness programs and the incentives that an employer provides to employees to participate in a wellness program. The EEOC is trying to coordinate the requirements of the Affordable Care Act with the requirements of the Americans with Disabilities Act. Its concern is whether various incentives provided by an employer for its employees to participate in a wellness program are actually penalties that discriminate against persons with disabilities who are not able to participate in a wellness program or choose not to because of their disability. Many companies have initiated wellness programs to try to reduce health care costs going forward. Under many plans, an incentive is given to an employee in the form of reduced premium contributions if the employee participates in the wellness program. In some cases, an employer will be more aggressive and try to insist upon an employee participating in the wellness program to improve the employee’s health and reduce insurance costs. These are the instances that are under review by the EEOC as a type of discrimination against individuals who may have a disabling condition. The EEOC is establishing new guidance for employers in an attempt to make sure that participation in a wellness program is clearly voluntary. This does not mean incentives cannot be provided but rather the incentives cannot be so one-sided that they are discriminating against persons with a disability.  New regulations will be introduced by the EEOC in the spring. Employers using a wellness program will have to monitor these regulations to make sure their incentives and participation requirements do not run afoul of EEOC’s view of disability discrimination laws.

Holiday Party - Celebration?

Posted on November 24, 2014, Authored by Dean R. Dietrich, Filed under Employment

Everyone is thinking about the holiday season. Many human resource professionals are wondering whether or not the company should sponsor a holiday party and what limits should be applied to such an event. The best answer is to be reasonable and to be more concerned about the safety of employees because of a potential disaster that could occur instead of worrying about liability to the company. What I mean is we need to be concerned about someone having too much fun and getting into an accident or harming someone else by driving under the influence of alcohol. This is a very sad event that may be difficult to foresee but important to be concerned about. So what are the options and recommended practices? Have a seasoned person (not company official) be the bartender; Provide limited drink tickets (2 is the norm) although that will not prevent employees from giving their tickets to others; Make sure you provide food of some type to help limit the impact of alcohol consumption; Assign certain employees to watch over the behavior of others without serving as the “alcohol police” for the event; Take bold steps if needed to insure that an employee is not driving away from the party under the influence of alcohol. Holiday parties can be a fun event but someone needs to be mindful of what is happening at the event. Yes, there is potential for liability to the company but more importantly, there is potential for much more serious consequences such as the loss of a co-worker.

Bring Your Comfort Animal to Work  Everyday?

Posted on September 29, 2014, Authored by Dean R. Dietrich, Filed under Employment

I am familiar with the national movement of "bring your child to work," but now I am wondering if we will have a national movement to bring your "comfort animal" to work. A recent federal court decision in Hawaii held that an employer may have discriminated against an employee based upon his depression and adjustment disorder disabilities when the employer told the individual he could no longer bring his "comfort animal," a Shih Tzu dog named "Sugar Bear," to work. The employer insisted upon medical documentation establishing the need for the employee to bring the animal to work even though the animal was a licensed service animal that helped the employee control his emotions and reduce his stress. The federal district court denied the motion for summary judgment filed by the company holding that there was a question of fact whether allowing the employee to bring the dog to work with him was a reasonable accommodation and whether the company had failed to engage in a sufficient interactive process with the employee before disallowing that from happening. The matter will now proceed to a full trial. When confronted with a request to bring an animal to work, the employer should ask for documentation of the need as well as the medical condition of the employee which establishes that need. The employer must engage in an interactive process with the employee, which means there must be face-to-face discussions with the employee about the request and the appropriateness of the request as well as the availability of other options. This interactive process and discussion is an absolute requirement based upon the many cases that have found discrimination because of a failure to engage in the interactive process. We can look forward to more requests for "bring your animal to work" today and forever.

EEOC Brings More Complaints

Posted on October 1, 2014, Authored by Dean R. Dietrich, Filed under Employment

I have written over the past several months regarding the activism at the Equal Employment Opportunity Commission. The beat goes on. Several recent complaints have been filed by the Equal Employment Opportunity Commission seeking to protect employees from alleged discriminatory conduct by an employer. In the first case, the EEOC filed suit over alleged sex discrimination involving transgender individuals. The EEOC alleged that two different companies discriminated against transgender workers by firing the employees for being transgender and not conforming to "the employer's gender-based expectations." In both of these suits, which were the first of their kind filed by the EEOC, the employer allegedly terminated an employee who gave notice that the employee was transitioning from male to female. These cases come on the heels of recent announcements by the federal government that it is illegal for federal contractors to discriminate on the basis of sexual orientation or gender identity. In the second matter, the EEOC filed a complaint against a legal staffing firm for discriminating against an attorney applicant because of her age in violation of the age discrimination law. The complaint alleges that the company rejected a 70-year old attorney when the company allegedly discovered her age during the hiring process. The employee asked the company whether a decision was being made to withdraw an offer of employment because of her age and the company indicated that the employee would not be considered for other positions with the temporary agency. In the third matter, the EEOC brought an action against a company for refusing to hire a male applicant who refused to cut his hair due to his Rastafarian religious beliefs. The EEOC is alleging that the company discriminated against the applicant who advised the company at the time of his interview that his religious beliefs prevented him from cutting his hair. The individual was interviewed for a delivery truck driver position and was allegedly told by the company that he could not have the job unless he cut his hair, which prompted the employee to explain why he could not have his hair cut due to his religious beliefs. The case focuses on the failure of the company to reasonably accommodate the sincerely-held religious beliefs of an employee provided the reasonable accommodation does not pose an undue hardship on the employer. This is one version of litigation involving "grooming" policies which alleges that such policies are discriminatory based upon the restrictions that may be applied. It is an expansion of the religious discrimination argument which is one of the identified focuses of EEOC enforcement actions. All of these complaints are at the initial stages. They show that the EEOC is working aggressively to pursue claims against employers when it believes that the underlying conduct is discriminatory in nature. Employers have to be careful in their personnel decisions to avoid a potential claim for discrimination against an employee because of a protected category. When faced with these difficult decisions, employers must be very careful and develop a clear record as to the basis for the decision they are making.

EEOC Strikes Again

Posted on September 17, 2014, Authored by Dean R. Dietrich, Filed under Employment

I mentioned in a blog several weeks ago that summer was gone and the EEOC was embarking upon a renewed effort to "flex its muscles" and pursue claims designed to limit the rights of employers. The EEOC has acted again by bringing a lawsuit against a California company challenging the language in an employee information release form that gave the company the right to ask for medical information from physicians and other professionals after an employee completed a fitness for duty exam. In this litigation, the EEOC has alleged a violation of the Americans with Disabilities Act and the Genetic Information Non-Discrimination Act by suggesting that the scope of information that was requested by the company in the release form discriminated against certain employees because the company was asking for any and all medical information about the employee instead of only about the medical condition of the employee. The EEOC has said that the information release form is so broad that it violates the rights of an employee under the Americans with Disabilities Act by inquiring about medical information that is not related to business necessity and to the need for information that would be used by the company to determine the ability of the employee to return to work. This is another example of the EEOC looking for cases to bring a challenge to company policies and practices in order to limit the right of a company to obtain information about its employees. Employers must be careful about what they are asking of their employees in situations where they are asking for medical information. The scrutiny of employer practices has been expanded thru these types of Agency enforcement actions.

Decision on "Like" Facebook Protection is Appealed

Posted on September 17, 2014, Authored by Dean R. Dietrich, Filed under Employment

I recently blogged about a decision from the National Labor Relations Board holding that an action by a worker to "Like" a comment on Facebook about the poor conduct of a company was considered protected speech under the National Labor Relations Act. The NLRB found that the termination of an employee for "liking" a comment on Facebook was a violation of the Act and called for reinstatement of the employee. That decision has now been appealed to the Federal Court of Appeals. The case involved Triple Play Sports Bar and Grill and inappropriate comments on Facebook by a former employee about the failure of the company to properly withhold state income taxes, which comment was "Liked" by two then current employees. The company terminated the two employees for their actions. The case has now been appealed to the Second Circuit Court of Appeals. The company is looking for a review of the decision by the NLRB that has been identified as a very employee-friendly agency. The hope is that this review by the Court of Appeals will provide a check and balance to the number of decisions by the NLRB that have provided for broad protections to employees. In this case, the NLRB gave protection to employees who criticized their employer and, in theory, adopted the insulting language from the post by the former employee. The NLRB, in its ruling, also found that the "Internet/Blogging" policy adopted by the company was too broad and could be construed to restrict employees from their protected speech rights. That ruling will also be subject to argument before the Second Circuit. Employers should continue to monitor this case because it will give us some guidance regarding the nature and extent of protected speech rights for employees and how the protected rights will intersect with social media and internet usage.

Working from Home May Not be Automatic

Posted on September 18, 2014, Authored by Dean R. Dietrich, Filed under Employment

I wrote a blog a number of months ago about a federal Court of Appeals decision which strongly suggested that working from home would be a required reasonable accommodation in certain circumstances. A decision involving Ford Motor Company strongly suggested that the company would be required to allow an employee with irritable bowel syndrome to work from home because the company could not show that attendance at work was an essential requirement for the work of this employee. See blog entitled "Door Open to Working at Home". Much to everyones surprise, the Sixth Circuit Court of Appeals very recently issued an order withdrawing its decision and setting the matter up for argument again. This order came because of a Motion to Reconsider filed by Ford Motor Company and signals that the Court of Appeals may have come to realize that its rather striking decision requiring an accommodation of working at home is not necessarily authorized under the Americans with Disabilities Act. We understand that an occasional request to work at home may be part of a reasonable accommodation package for an employee, but an accommodation that the employee may work at home at all times does not appear reasonable. Apparently, the Sixth Circuit Court of Appeals has had second thoughts and will reconsider its decision on what is a reasonable accommodation for an employee who has difficulty coming to work or working at the place of employment. We will continue to monitor this case. It is should be very interesting.

EEOC Challenges Wellness Program

Posted on September 16, 2014, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

In a recent complaint filed in the Eastern District of Wisconsin, the EEOC has challenged a wellness program administered by a Wisconsin company. Under the wellness program employees were asked to complete a health risk assessment, including questions regarding medical history, and were required to complete certain blood work. In addition, the health risk assessment included a test on a range of motion machine in the physical fitness room at the work site. The legal challenge involved one employee who refused to complete the wellness program. Allegedly, when this employee refused to complete the program, the employee was charged a full premium for the health insurance coverage and ultimately was terminated from employment for making complaints about the wellness program. Importantly, one of the legal challenges also questioned whether the wellness program was truly voluntary and did not have any type of business justification for mandatory participation. Many local government employers have implemented wellness programs to address health care costs. Extra caution must be used to make sure the wellness program is voluntary and the local government employer does not compel participation by doing such things as imposing a requirement of paying 100% of the health insurance premium if the employee does not participate in the wellness program. Evidence has shown that wellness programs can address health care costs and assist an employer in regulating some of the cost of health care for its employees. Employers must be careful, however, they do not violate the requirements of the Americans with Disabilities Act by penalizing an individual who does not actively participate in a wellness program.

Indiana Supreme Court Holds Right-to-Work Law is Constitutional

Posted on December 4, 2014, Authored by Dean R. Dietrich, Filed under Employment

Several months ago, there was a lot of media coverage about a law adopted by the Indiana Legislature known as the Right-to-Work law. This law provided that a union could not force union members to pay union dues or be required to join a union that represented employees at a company. This law was subject to several legal challenges. The federal court for the Seventh District (which also includes Wisconsin) previously held that the law was constitutional and an appropriate exercise of legislative authority by the Indiana Legislature. Several state trial court cases held, however, that the law was unconstitutional because of peculiar language in the Indiana Constitution. The Indiana Supreme Court has now held that the law is constitutional and it was appropriate for the Legislature to pass a law which prohibited unions and employers from entering into a collective bargaining agreement which required all employees to join the union or pay dues to the union. Thus, Indiana employers who are negotiating with local unions are not required to negotiate on language which would require mandatory payment of dues and mandatory enrollment with the union if an employee wished to stay employed by the company. There has been talk about the Wisconsin Legislature passing a “right-to-work law” for Wisconsin employers. It is too early to tell whether this will become an issue in the upcoming legislative session, but the ruling by the Indiana Supreme Court is very helpful to those advocates who seek adoption of a right-to-work statute in Wisconsin. Recently, a group has come out advocating for right-to-work legislation in Wisconsin. It appears that the Legislature is interested in talking about this topic, although no promises have been made or assurances given that the Legislators approve this type of legislation.  If such a law is adopted, Wisconsin employers would be prohibited from negotiating a union shop clause which requires all employees to join the union to remain employed by the company and prohibits a Wisconsin employer from negotiating mandatory dues deductions from all employees who are part of the union membership. Wisconsin employers should be careful as they go to the bargaining table to be aware of what may happen in the Legislature and adjust their bargaining strategy as may be appropriate.

Are Employers Receiving A Special Christmas Gift This Year?

Posted on November 20, 2014, Authored by Dean R. Dietrich, Filed under Employment

Some commentators have suggested that the recent Republican vote will limit the activity of the National Labor Relations Board and avoid the potential for more activist activity from the Board. It is not clear, however, how the House and Senate can effectively limit the activism that has been predicted absent drastic legislative changes. As Christmas approaches, the National Labor Relations Board may become very active in presenting “gifts” to employers such as the quickie election requirements being adopted as well as new regulations regarding the “micro” bargaining units. Why are these things likely to happen in the face of the recent Republican majority election? The appointment of one of the NLRB Board members expires on December 31 and there is concern the new majority in Congress will not appoint a new member to give a full five-member majority to the NLRB. If that happens, the NLRB could be stymied from implementing its activist agenda. This may mean that a number of NLRB initiatives will be implemented over the next 30 days while the employee-friendly majority still exists. Things are coming down to the wire in DC and we may see some large pronouncements from the NLRB before the end of the year. Employers must be prepared to respond to the quickie election rules and other election proceeding changes to avoid giving an advantage to union organizers. Sensitivity to employee relations are critical at this time to make sure your company is preventing union organizing efforts.

Sex Discrimination of All Types Will Be Enforced

Posted on December 16, 2014, Authored by Dean R. Dietrich, Filed under Employment

The Equal Opportunity Employment Commission has filed a complaint against two different companies alleging discrimination against individuals because of their actions to change gender and allegations the employee was terminated because of such conduct. These are the first cases brought by the EEOC since it took the position in 2012 that transgender discrimination is prohibited as a type of sex discrimination. In one case, a medical clinic terminated a properly performing employee who was biologically male but began dressing as a woman and informed the employer that she was transgender. In the other case, a funeral home terminated a biologically male employee after she informed the company she was planning to transition from male to female and would soon be coming to work dressed as a woman. Both of these cases focused on discrimination based on sex as a violation of Title VII which prohibits discrimination based on sex under federal law.  This is a new area of enforcement being pursued by the EEOC. We cannot say that this is a trend but it certainly sends a signal that employer actions based upon some level of consideration of the transgender employee and his/her conduct will be subject to review and scrutiny by the Equal Employment Opportunity Commission. We are not aware of any initiatives in Wisconsin by the Equal Rights Division, but there certainly is anticipation the Equal Rights Division will take the same position. Employers must be cautious if they are confronted with this situation to avoid being accused of sex discrimination in the manner in which they handle the employment status of a transgender employee.

U.S. Supreme Court Reviews Notice Requirement

Posted on October 29, 2014, Authored by Dean R. Dietrich, Filed under Employment

The United States Supreme Court has agreed to review a decision on a case brought by the Equal Employment Opportunity Commission against national clothing retailer Abercrombie & Fitch Stores, Inc. which focuses on the duty of an employee to request an accommodation for religious beliefs. This decision will have a significant impact on employers and employees when dealing with religious discrimination and providing notice of a need for an accommodation. In this case, Abercrombie & Fitch decided not to hire an applicant who wore religious garb (a Muslim woman who wore a black head scarf (hijab)) because her look did not fit the collegiate style of clothing sold by the company. The applicant for employment wore the hijab to an interview but never requested an accommodation to allow her to wear that piece of clothing while working. The company felt the appearance of the employee did not fit the company look and did not offer employment. The EEOC sued for failure to accommodate religious beliefs and alleged religious discrimination against the company. The trial court found in favor of the EEOC, but the Tenth Circuit Court of Appeals held there was no discrimination because the applicant did not ask for an accommodation. The case is now before the United States Supreme Court for consideration. Briefs will not be submitted until early 2015, so it will take some time before we receive a decision from the Court. The decision will ultimately tell us whether an employer must assume the need for an accommodation for religious beliefs or require the employee to make that request before an employer must give consideration to such an accommodation. This and other cases will focus on the topic of religious discrimination which is becoming a popular cause of action against employers. Companies should check their policies to make sure they are giving consideration to an accommodation for religious beliefs when making hiring decisions and continued employment decisions.

Supreme Court Refuses to Consider Appeal on Plan Design Issue

Posted on October 27, 2014, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

The Wisconsin Supreme Court recently announced that it will be considering 13 new cases during its upcoming session. Absent from that announcement was a decision to consider the appeal by the City of Milwaukee Police Union which sought Supreme Court review of a decision over the City implementing changes to the health insurance plan covering police department employees. The Wisconsin Court of Appeals has held that a determination of the amount of payment by police employees for deductibles and co-pays under the City health insurance plan was not a bargainable issue as a result of legislative changes which excluded health insurance plan design from being a bargainable issue for public safety employees. This non-decision is the latest in the saga over the limits on collective bargaining for public safety employees. The ruling in the Milwaukee County Circuit Court case held that the amount of contribution by the employee for deductibles and co-pays under the health insurance plan was part of "plan design" and therefore not subject to the duty to bargain that still applies to police and fire employees in local government. As a result, local governments are allowed to establish the amount of the deductible and co-pays that would apply, and would not be obligated to negotiate with the union over how much of the deductible and co-pay amounts would be paid by the employer. The local government body has the right to make that determination and implement it for employees without bargaining first with the public safety union. There are still suggestions that the Legislature will impose all of the Act 10 requirements on public safety unions. The outcome of the Governor election and the agenda of the majority Republicans may well determine whether or not collective bargaining, in its current state, will continue for public safety employees.

Caution: Union Organizing Activity Can Come Quickly

Posted on December 17, 2014, Authored by Dean R. Dietrich, Filed under Employment

We have written several blogs about the recent activity of the National Labor Relations Board that directly affects union organizing efforts. Recent action by the NLRB has authorized the use of company e-mail for union solicitation communications by employees. The NLRB has also published major revisions to the union election rules which expedite the union election process and drastically reduce the time for a company to raise objections to the list of employees that would be eligible to vote in the union election. Under the recent NLRB ruling, employers may not prohibit an employee from using company e-mail to send information about union organizing or a possible solicitation for union representation. This means that employees have direct access to other employees by e-mail to advocate joining a union. While this case will be subject to further judicial review, employers may have to open the door through e-mail to much easier communication amongst employees.  The changes to the union election process allow an individual to file an election petition by e-mail and requires an employer to disclose available personal e-mail addresses and phone numbers of employees that would be deemed eligible to vote in a union election. As a result, the speed of technology will make for very quick election proceedings and employers will have little opportunity to engage in a campaign against the effort to seek union representation by employees. This means that companies must be prepared to act, on a moment’s notice, to respond to potential union organizing activities. Companies should have information and draft communications ready to go quickly if there is evidence of a union organizing campaign amongst its employees.  We anticipate there will be legal challenges to this recent NLRB decision about use of e-mail and the recent NLRB rules on “quickie” elections but while those legal challenges are being processed, employers are at risk of a very quick and effective union campaign to organize the employees at a particular facility or throughout the company. It is now up to employers to be ready to respond immediately if they become aware of a union organizing initiative.