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Searching for Articles by Dean R. Dietrich
Dean R. Dietrich
Chair of Employment, Benefits & Labor Relations Practice Group
Attorney
Wausau Office
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Found 171 Results.

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.

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.

Attention Deficit Disorder - Disability?

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

I have always been concerned that attention deficit disorder would become a commonplace claim of a disability by employees, especially employees who are subject to disciplinary action. A recent decision from the 9th Circuit Court of Appeals gives employers some hope that attention deficit disorder (ADHD) will not automatically be considered a disability. In this decision, a police officer for a community in Oregon had several conflicts with his co-workers and was terminated for his behavior. The police officer alleged that he was terminated because of a disability, being his previous diagnosis of ADHD. Several physicians said the police officer was able to work and perform his duties without limitation or restriction. A jury found the city discriminated against the employee by terminating the employee for his inappropriate interactions and conflict with co-workers. The 9th Circuit Court of Appeals overturned the jury decision and made two important rulings. First, the Court held there was no evidence of substantial limitation in the major life activity of working because the evidence showed the police officer was successful in performing his duties and in fact, had been promoted to a sergeant position. There was evidence he had difficulty working with others in the workplace, but that did not rise to the level of a substantial limitation on his ability to work. The Court also found that interacting with others was a major life activity but a mere inability to get along with others did not rise to the level of interacting with others and constituting a major life activity. The evidence showed the police officer was able to engage in normal social interactions and therefore he was not considered disabled and unable to engage in the major life activity of interacting with others. In other words, the individual often acted like a "jerk," but that behavior did not rise to a level of being protected as a major life activity. This decision is not an all-encompassing answer to the question of whether attention deficit disorder will be considered a disability. An analysis will be required on each individual and how the disorder impacts the ability of the individual to be able to perform their duties in the workplace. The decision does direct employers to do a more thorough analysis of the work difficulties experienced by this type of employee before concluding that a disability exists for which an accommodation must be made.

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.

Update: Watch Out for NLRB Activism

Posted on August 26, 2014, Authored by Dean R. Dietrich, Filed under Employment

I recently attended an employment law seminar sponsored by the State Bar of Wisconsin. One of the presenters was the Officer in Charge of Sub region 30 of the National Labor Relations Board. In a very candid and open discussion, the Officer in Charge made it very clear that the activism of the National Labor Relations Board will be continuing and employers should be wary of things coming down from the NLRB. In particular, he indicated the "quickie election" rules for the processing of a union election petition will likely be adopted by the Board in the near future. I previously wrote a blog (Quickie Election Rule Under Attack) about the administrative rule changes that will call for a very expedited process to consider a union election. One of the most important aspects of these anticipated new regulations is there will not be any hearing prior to an election vote to determine whether a particular employee or position is eligible to vote in the union election. Rather, the election will be held and the ballots from those employees will be held in abeyance and only counted if it is needed to determine the outcome of the election. Hearings on the challenging of eligibility for voting in an election were normally part of the process and required a hearing before the election was actually conducted. That process will change significantly and the election petition will be processed in a very expedited fashion because there will be no opportunity for a hearing on any issues other than whether an election cannot be held because of a "contract bar" (meaning that a labor union with an existing labor agreement already exists). The other discussion concerned the actions of the NLRB to review company personnel policies and provisions in employee handbooks. Many provisions are being subject to significant scrutiny by the NLRB through the unfair labor practice investigation process. Any provisions in the employee handbook that seem to discourage the right of an employee to talk about wages and working conditions will likely be declared unlawful and a violation of the employee Section 7 rights, including the right to engage in concerted activity relating to the workplace. A recent complaint was filed against Sears and K-Mart challenging some of the language in the employee handbooks of these two companies. Any language that would seem to discourage an employee from talking about workplace issues will be subject to scrutiny by the NLRB. Employers must be aware of these potential challenges because an unfair labor practice charge against the company could become a very effective rallying cry for a union organizing campaign. The presentation from the Officer in Charge was very open and candid but created a great deal of frustration over potential activism of the National Labor Relations Board. Employers of all sizes must be aware of this potential for intrusion by the NLRB into the day-to-day operations of a company.

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.

Lazy Days of Summer are Gone - EEOC Files Lawsuits

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

It appears the lazy days of summer have gone away. The Equal Employment Opportunity Commission (EEOC) recently filed two lawsuits showing its aggressive stance to "cleanup" its view of discrimination matters. One lawsuit involved discrimination under the Americans with Disabilities Act for being terminated when deciding not to participate in a wellness program. The other lawsuit involved allegations of religious discrimination. In the participation in wellness program lawsuit, a Wisconsin company was sued by the EEOC alleging the company terminated an employee for refusing to participate in a voluntary wellness program. The complaint alleges the company required an employee to pay the full health insurance premium cost and then subsequently fired the employee because the employee objected to questions being asked in a wellness program and refused to participate in the wellness program activities established by the company. The EEOC is alleging the wellness program was not voluntary and the termination of the employee was contrary to the requirements under the Americans with Disabilities Act as it relates to voluntary participation in a company established wellness program. The EEOC, in its press release, acknowledged the popularity of company-based wellness programs but reiterated its position that the wellness program must be completely voluntary so that an employee deciding not to participate is not adversely affected in any way. The EEOC is pursuing back wages and additional monetary damages for "mental anguish" and punitive damages for "malicious and reckless" conduct. In the religious discrimination case, a California company was sued by the EEOC alleging it violated the religious discrimination requirements of the Civil Rights Act when it terminated an employee who was unavailable for work because he had to attend Jehovah's Witness services and meetings. The employee was an elder in the Jehovah's Witness Church and had to attend services on Thursday evening and Sundays so he could not work on those days. The employee allegedly told the company, at the time of initial employment, that he needed to have time off on the upcoming weekend to attend a Jehovah's Witness convention and was terminated when he failed to report to work on those scheduled days. The EEOC is seeking a permanent injunction against the company for any discrimination against other employees for their religious beliefs and a court order forcing the company to enact policies and procedures that would prevent that type of discrimination. The EEOC is also seeking payment of back wages with compensatory and punitive damages against the company. It is easy to see the EEOC will be pursuing litigation to enforce its views of the protections given to employees under federal law against discriminatory conduct. Employers should take the time to review their policies and procedures to avoid any claim of discrimination by the EEOC.

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.

English-Only Policies Under Scrutiny

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

Some companies have adopted an English-only policy which requires that employees use English as the only language allowed in the workplace. This type of policy is often adopted for safety reasons to ensure that everyone understands what is being said in an emergency situation. Unfortunately, the adoption of an English-only policy can create liability for a company. A recent statement by a regional attorney for the Equal Employment Opportunity Commission (EEOC) actually warns employers against adopting English-only policies. The suggestion is that requiring employees to be fluent in English and requiring only the English language be used in the workplace can be the basis for a claim of discrimination in the workplace. The EEOC recently sued a Wisconsin manufacturing company alleging the company engaged in national-origin discrimination by firing employees with poor English language skills. The EEOC is arguing that the English-only requirement is not necessary for employees to perform their duties and seeks reinstatement, lost wages and compensatory damages for deciding to terminate these employees. The argument is that the English-only requirement is a subtle way of discriminating against non-English-speaking employees and therefore discriminating on the basis of national origin. It is difficult for a company to argue that English-only is an absolute requirement for employment because certainly safety considerations can be addressed with training of employees regarding the use of certain language in an emergency. Companies should be very careful if they are contemplating the adoption of an English-only work policy. These types of policies will attract attention from the Equal Employment Opportunity Commission. If you really feel that English-only policies are necessary, they should be narrowly tailored to achieve the specific goals that you feel are necessary. The policy should specify when employees are required to communicate in English and clearly allow employees to use their native tongue when not performing that duty which required the English language. Companies should also publish the notice in English and other languages and make sure the policy is communicated to all employees before enforcing it.

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.

Wisconsin Act 10 Legal Challenges are Over - Managing the Local Government Workforce

Posted on August 13, 2014, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

The Wisconsin Supreme Court has ruled the provisions of Wisconsin Act 10 subject to legal challenge are constitutional and therefore binding on all local government employees and public sector unions. In addition, a recent challenge initiated by the Wisconsin Professional Police Association to the constitutionality of Act 10 has been dismissed by the Association. Local government employers now are free to exercise discretion in the managing of the local government workforce. Much of the management of the local government workforce occurs through employee handbooks adopted by the governing body. Local government officials now have the flexibility to adopt employment policies and procedures that are designed to make the local government unit a "preferred employer" within a specific geographic region. This requires local government officials to think outside the box and address many circumstances relating to the working conditions of government employees. Ruder Ware will be sponsoring a Local Government Seminar on September 30 that will address the flexibility granted to local governments under the Wisconsin Act 10 legislation and recent Court rulings. The summary of the Seminar can be found at Local Government Invitation. Municipal employers must now recognize the flexibility that has been given to them but also must exercise their discretion with caution.

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.

Duty to Accommodate Pre-Existing Conditions of an Employee?

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

There has always been a question whether an employer is required to provide accommodations to an employee who has suffered an injury that impacts the employee's ability to work when the injury occurred before the employee was hired. These types of injuries are called pre-existing injuries or pre-existing conditions and many employers believe they do not have to accommodate an employee for a condition that occurred prior to commencing employment. A recent decision from the 7th Circuit Court of Appeals (which covers Wisconsin) held that the Company was required to accommodate an employee for an injury that occurred prior to employment. In this decision, the employee suffered from chronic back injuries caused by a previous workplace injury with another employer. The Company did not consider any request by the employee to stop performing certain work duties because they aggravated his chronic back problem. The employee was ultimately terminated and filed a complaint for discrimination based upon a disability and for retaliation because of terminating the employee while the employee was off of work due to the chronic back problem. At trial, the jury found for the employee and awarded a verdict of $115,000 in back pay, $100,000 in compensatory damages and $200,000 in punitive damages against the Company. The Company was found responsible for punitive damages because the Company did not follow its established procedure for handling employee accommodation requests. The important aspect of this decision however, is that the Company was held responsible for accommodating the injury/back problem of the employee even though the employee came to the job with that pre-existing back problem. Employers must be careful when reviewing the duty to accommodate an employee with a disability even if the disability results from an injury or medical problem experienced prior to employment with the Company.