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

Mixed Motive For Discrimination Decision - Be Careful

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

A recent Wisconsin Court of Appeals decision highlighted the importance of employers being very careful when making employment decisions to ensure that part of the rationale for a decision is not discriminatory in nature. In this decision, Milwaukee County terminated a manager for violation of County policies on use of technology. During the discussion with the employee, it was indicated he was being terminated because of his arrest for sexual assault which ultimately was dismissed in a criminal proceeding. The other reason for termination was a clear violation of the County policy on use of computers and improper communications using the County e-mail system but that was not discussed at the time of termination. The Court of Appeals found the termination decision was made "in part" for an impermissible reason, being discrimination on the basis of arrest record. The Court of Appeals ultimately found the employee should only receive limited back pay, a large sum for attorneys fees and a cease and desist order against Milwaukee County because there was clear legitimate reason for terminating the employee because of a violation of the e-mail usage policy. Unfortunately, Milwaukee County was found liable because the evidence showed the arrest of the employee was a factor in the decision to terminate the employee. This case is an example of the importance of how an employer communicates a decision to terminate an employee. It is also an example of the need for caution when dealing with arrest and conviction record situations. In this case, the employee ultimately was never arrested but rather was only investigated regarding inappropriate conduct, however, the allegation was still made (and upheld) that the employee was discriminated against because of his arrest record. The only saving point to the action by Milwaukee County was the fact that there was a legitimate reason to terminate the employee for violation of County policy which partially limited the recovery by the employee.

Broad Confidentiality Rule - Violation of Employee Rights?

Posted on August 11, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the National Labor Relations Board has again highlighted the lengths to which the NLRB will go to seek out protection of employee rights under Section 7 of the National Labor Relations Act. This Section allows employees to communicate regarding union organizing activities and exchange information amongst employees regarding possible union organizing efforts without retaliation by the Employer. In a recent decision, the Board, by a 2-1 margin, found that the confidentiality rule in the Company Code of Business Conduct violated the employee rights to discuss things like wages and terms and conditions of employment. The confidentiality portion of the Code of Business Conduct was directed at employees and indicated that customer and employee information should be kept secure and that such information could only be used "fairly, lawfully and only for the purpose for which it was obtained." The majority of the Board felt that this language was unlawful because employees could "reasonably construe the admonition to keep employee information secure to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment." It was argued that the Code of Business Conduct was designed to inform employees of the business ethics of the Company and not as an employee handbook with work rules affecting employee conduct. This argument fell on deaf ears even though the administrative law judge had used that rationale to find no violation of the employee rights protected by Section 7. This decision shows that the Board is taking every step to ensure employee rights. Some would suggest that it is reaching well beyond the rationale used in the past by the Board to find a violation of Section 7 rights. Employers must recognize the risks that exist under these very liberal interpretations of Section 7 rights afforded employees. A review of the Company handbook may be appropriate to ensure there is no provision that could fall under this scrutiny.

Is Six Months Enough?

Posted on June 6, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the Tenth Circuit Court of Appeals has addressed the question whether a six-month leave of absence for a disabled employee is sufficient to satisfy the reasonable accommodation requirement. The Court of Appeals found that Kansas State University satisfied the reasonable accommodation requirements under the Rehabilitation Act when terminating an assistant professor suffering from cancer who had been granted a six-month paid leave of absence while undergoing cancer treatment. The Court found that the Rehabilitation Act did not generally compel an employer to hold a position for a non-performing employee for more than a six-month period. The Rehabilitation Act is a public sector law similar to the Americans with Disabilities Act. While this is an older law, it has the same concepts and language as found in the Americans with Disabilities Act and its Amendments. The Tenth Circuit Court of Appeals reviewed language from the EEOC manual which holds that an employer did not have to retain a worker who was unable to perform their job functions for more than six months by finding that the timeframe of more than six months was "beyond a reasonable amount of time." Wisconsin employers must remember that decisions under the Wisconsin Fair Employment Act have suggested that employers must show flexibility when considering whether or not to continue the employment status (without pay) of an employee who was undergoing treatment for a medical condition. The limit of six months does not automatically apply in a case involving a Wisconsin employer but it does offer some significant guidance as to what would be considered "reasonable" under the requirement that the employer provide a reasonable accommodation for an otherwise "qualified disabled person." We do not have a decision in Wisconsin that directly speaks to the length of time that an employer must continue the employment status of an employee suffering from a disabling condition but it appears the six month period would meet the standard of being "reasonable" under the circumstances.

Access to Company Property During Off-Duty Time - No Restrictions

Posted on May 21, 2014, Authored by Dean R. Dietrich, Filed under Employment

An employer would normally think that it could pass a work rule that says an employee does not have access to company property when the employee is off-duty and not working. This makes sense, because there is no reason for the employee to be on company property if they are not there to perform work. We now have to think twice, because the National Labor Relations Board (NLRB) recently found that a company violated the rights of an employee when it implemented and enforced a policy preventing employees access to its property during off-duty time without prior supervisor authorization. In the recent decision of American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers-West, the NLRB held the Nursing Home violated the rights of its employees when it disciplined two employees for meeting in the employee break room after their regular hours to visit with a union official. The rule restricted the access of off-duty employees without prior supervisor approval and a notice was posted stating the union was not permitted to hold meetings in the employee break room. The union challenged this rule claiming it violated the rights of the employees to organize and discuss working conditions. The NLRB found the rule was unlawful because it gave unlimited discretion to management to determine when and why employees would have access to company property. This is another example of the NLRB imposing restrictions on a company because of the exercise of union rights and the freedom of employees to engage in union-related activities. The NLRB is imposing a very distinct agenda that opens the door to an unfettered freedom for employees to engage in union organizing activities. Companies must be careful in the implementation of policies to avoid a finding that they have interfered with the rights of their employees. While such a finding may not be harmful to the company, the exercise of this right (and the support of the NLRB) may be damaging to the relationship between a company and its employees.

New Decision - Same Result - Same Worry

Posted on August 12, 2014, Authored by Dean R. Dietrich, Filed under Employment

Another decision from the National Labor Relations Board has created the same worry for employers. An NLRB judge recently ruled that several portions of a company employee handbook restricted the rights of workers to organize and discuss their conditions of employment and found there was a violation of the Section 7 rights of the employees. In a decision involving a hotel operator, Hostmark Hospitality Group, the administrative law judge found that the company violated the National Labor Relations Act by maintaining an overly restrictive employee handbook. The judge felt several policies in the employee handbook were improper or illegal including a policy that prevented employees from accessing the hotel facilities when not on duty. The judge also found that a policy which directed employees not to speak with the media was a violation of the law as well as a confidentiality policy which allegedly gave employees the impression they were prohibited from discussing their wages or conditions of employment. The judge ordered the company to rescind the handbook policies that he determined were in violation of the National Labor Relations Act. This is again another decision by the NLRB that scrutinizes the policies of a company and holds that a policy which seems to interfere with the freedom of speech of an employee to talk about wages and working conditions was a violation of the law even if the company policy was simply a declaration of the need for confidentiality of company records and information. This decision again shows the lengths the NLRB will go to find that a company policy violates the union organizing rights of employees and is therefore in violation of the National Labor Relations Act. Employers should give careful review to their employee handbooks to avoid this type of scrutiny and the potential for an unfavorable ruling by this pro-employee Board.

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.

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.

EEOC Issues Pregnancy Discrimination Guidelines - No Real Change for Wisconsin Employers

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

In the last two weeks, the Equal Employment Opportunity Commission (EEOC) has issued an Enforcement Guidance document on pregnancy discrimination and related issues. This Guidance is a comprehensive statement by the EEOC on pregnancy discrimination and the duty of employers to provide accommodations to a pregnant employee. One of the most significant statements in the Guidance is that employers must provide the same accommodation for a pregnant employee as it provides for other employees with a disabling condition and may not provide a benefit/leave solely for employees who suffer an on-the-job injury. In other words, policies for time-off that apply to an employee who suffers an on-the-job injury must be applied to employees who are pregnant. This is a change from some statements in other EEOC documents. The Guidance offered by the EEOC really does not change the obligations that an employer has under the Wisconsin Fair Employment Act. Almost all employers have assumed a requirement to make accommodations for a pregnant employee and generally understand they may not treat a pregnant employee differently than any other employee who suffers from a disabling condition and needs to be away from work. Some of the pronouncements in the EEOC Guidance provide clarification for Wisconsin employers but really do not change the general understanding that has been applied by Wisconsin employers. The Guidance document can be obtained by accessing the EEOC website at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm. The real take-away from the Guidance and how things have been looked at in the past is that an employee who is pregnant must be treated the same as any other employee in the workplace. Most pregnancy discrimination cases arise during the hiring process when an individual is not hired or is removed from consideration because the employee announces she is pregnant. This is really hiring discrimination rather than inappropriate treatment in the workplace, but we can anticipate the EEOC pursuing more cases involving differential treatment of a pregnant employee compared to other company employees. Employers may want to review their personnel policies to make sure they are clearly following the same accommodation considerations whether it is an employee with a disabling condition or a pregnant employee.

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.

Stop Talking About Your Compensation - Not

Posted on June 10, 2014, Authored by Dean R. Dietrich, Filed under Employment

Many companies have a policy that prohibits employees from talking about their salary or benefits in order to avoid morale issues in the workplace. It is sometimes hard to enforce a policy like this, but companies believe it is important to make it clear that a discussion of salary that an employee receives is not acceptable in the workplace. Recent statements by General Counsel Richard Griffin Jr. have made it very clear that the NLRB will be looking to stop these types of policies from being implemented. General Counsel Griffin spoke at a recent labor law conference and stated that company policies which forbid workers from discussing compensation will be on the top of his list of priorities to eliminate on the theory that such policies are a violation of an employee's right to protect it's speech about wages, hours, and conditions of employment, known as Section 7 protected speech. General Counsel Griffin believes that policies of this type are a clear violation of NLRA rights and should not be included in an employee handbook or workplace rule. Attorney Griffin is relying upon a recent NLRB ruling which held that a trucking company violated federal law by maintaining a confidentiality policy that prohibited workers from discussing wages. General Counsel Griffin also spoke about the Board precedent that prevented employees from using company e-mails to engage in union discussions and union organizing campaigns. The NLRB is seeking arguments on a case that looks to overturn the prior precedent and would allow the use of company e-mail to communicate between employees about union organizing efforts. Employers must be very careful that they are aware of the new strategies being adopted by the NLRB. Company policies are under attack and will be used as a basis for unfair labor practice claims against a company even in a non-union setting.

Contracted Employees: Will You Become a New Employer?

Posted on July 7, 2014, Authored by Dean R. Dietrich, Filed under Employment

Many companies use contracted employees to avoid the cost of human resources services and benefits. Under these arrangements, a company will hire another company to provide the employees that will do all or a portion of the production work for the business. This has become a popular way to manage human resources costs and benefits. The National Labor Relations Board has held that the company contracting with another company is a separate employer and not responsible for issues involving the employees (such as union organizing efforts) provided the company is not actually sharing in the ability to control or determine the essential terms and conditions of employment for these employees (things such as hiring, firing and direct supervision of the employees). The lack of control over the employment conditions for the employees of the contracted company is what gives protection to the contracting company from any requirements of being an employer of those individual employees. The world as we know it regarding contracted employees may be changing. The National Labor Relations Board and its General Counsel (Richard Griffin, Jr.) are looking to change the criteria for determining whether two companies are considered "joint employers" of these contracted employees. The NLRB is currently considering a case where the Teamsters Union is seeking to organize employees that are directly employed by a sub-contractor. The Union is asserting that the company is a joint employer with the sub-contractor and is seeking to overturn a long-standing precedent of the Board suggesting that it is time to "overhaul its (Board) dated and toothless test of joint-employer status." In this case, the sub-contractor has employees working on the premises of the contracting company. The desire of the NLRB to engage in a review and control of non-union work settings suggest that the Board will undertake a change in the "joint employer" standard and make it easier to organize these types of contracted workers to be considered an employee of the contracting company. Employers should look very closely at the current contracting arrangements used for obtaining employees that work for a sub-contractor who also do work for the company. There should be an assessment of whether there is a risk of a "joint employer" status and what the impact of that may be on the company operations and employee costs.

Texting While Driving - Illegal But Paid

Posted on May 21, 2014, Authored by Dean R. Dietrich, Filed under Employment

Many municipalities and states have adopted a law that prohibits texting while someone is driving. Individuals are prohibited from texting or even dialing the phone while driving. This prohibition is probably violated much more than it is complied with, but regardless of what the prohibitions may be, employers may still be "on the hook" for paying an employee who is talking or texting while driving if the topic is work related. There has been a lot of litigation about whether time spent travelling by an hourly employee is compensable. Travel by an hourly paid employee may include (1) the regular commute to and from work; (2) travel during the regular work day; (3) travelling from one place of work to another place of work as part of regular duties; or (4) making a stop for business reasons while travelling to or from work. Under most of these circumstances, the employee will be paid for the time spent performing work and the time spent travelling from one location to another location to perform work duties. The interesting question is whether an employer is required to pay an employee for the commute time to and from work. Normally, this time is considered non-compensable because it is travel to and from work by the employee and not part of the work duties required to be performed by the employee. If the employee is stopping for business reasons during the commute at the start or end of the workday, it is likely that time would be considered work time because there is a requirement that some level of work be performed for the benefit of the employer. It will depend upon whether the stop for business reasons is incidental or an important requirement for work. The more challenging question is whether pay should be given to the employee if the employee is talking while travelling and the phone call is business-related. An argument can be made that the employee should be compensated for that time because they are performing work-related business. In a recent decision by the Connecticut Supreme Court, the Court acknowledged in a footnote, that the employee would be considered performing work if the employer is telephoning an employee during the regular commute time and engaging the employee in a discussion concerning work-related issues. Travel time to and from work may now become more of a work-related activity and subject to pay requirements.

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.

Watch Out - Protections Against Swearing at Boss

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

The National Labor Relations Board continues to reach out to provide protection to employees. In a recent decision, the Board concluded that an outburst in the workplace by an employee was considered protected speech, because the employee did not explicitly threaten violence and did not act in a violent fashion. The employee did, in a raised voice, call his supervisor by a number of unacceptable names using the "f" word in conjunction with other words. The employee even threatened the supervisor by saying that if the supervisor fired the employee, the supervisor would regret it. The employee was terminated and filed an unfair labor practice charge with the National Labor Relations Board. The Board concluded the termination of the employee was in retaliation for conduct that occurred at a meeting, and that the employee should be protected from retaliation to better serve the goal of fostering collective action without unduly impairing the employer's interest in maintaining workplace order. In other words, an employee can use swear words when addressing a supervisor and not be subject to termination, because the statements may be considered protected speech. This makes me wonder what will happen next. Is it protected speech to criticize the company in front of customers or can a company take action when there is a disruptive employee? I guess it remains to be seen.

Pray Before Local Government Meeting - Honor All Religions

Posted on May 9, 2014, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

The United States Supreme Court, in the recent decision in Town of Greece v. Galloway held that prayers before a town meeting delivered by a "chaplain of the month" did not violate the Establishment Clause and therefore were not prohibited from being used by a local township at the start of its meetings. The majority opinion, by a 5-4 vote found there was no violation of the First Amendment by holding that "ceremonial prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond that authority of government to alter or define." This quote by Justice Kennedy frames the ruling by the Supreme Court. The Supreme Court also found that a local government unit may not discriminate against non-Christians when taking steps to select a "chaplain of the month" for reading at the local government meeting. In other words, the local government unit must honor all religions and acknowledge all religions when choosing someone to read a prayer at the start of a government meeting. It is important to recognize that the prayers at the Town of Greece public meetings were generally secular in nature; however, the Town leadership had made it clear that any type of faith or even atheists were welcome to give the opening prayer. Local government units now are able to continue the practice of opening their meetings with a prayer but government leaders must be careful they offer the opportunity to all types of religions to give the opening prayer.

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.

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.

Closed Session Agendas - How Much Detail?

Posted on May 20, 2014, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

There is a great deal of debate how much detail you must use on the open meeting agenda when the local government board is convening into closed session. It is clear the agenda must state what section of the Open Meetings Law is being used as the exception to allow a closed meeting, and there must be a statement, with some specificity, of the type to be discussed in the closed session. It is also clear that a local government body cannot simply state the number of the state statute being used to go into closed session and not indicate with more detail the topic to be discussed in the closed session. What is not clear is the amount of detail that must be used when preparing an agenda for a closed session meeting. It is commonly recognized that you must state in the meeting notice and in the motion to go into closed session, the statutory reference by number that is being relied upon to adjourn into closed session. We believe that the more appropriate practice is to state the number of the state statute and the actual language of the state statute as part of the meeting notice for going into a closed session meeting. While this level of detail may not be required by the statutes, it is the most effective way to communicate to the public the reason for going into the closed session and the rationale that is relied upon for adjourning into closed session. It is also necessary to identify with some degree of specificity the item that will be discussed in the closed session. You do not have to list names of individuals that will be talked about in the closed session, but you have to convey enough information so the public knows what will be talked about in the closed session. The exact language will, of course, depend upon the exact topic that you anticipate discussing and how much need there is for confidentiality. For example, a local government board that is adjourning into closed session to discuss the terms of a development agreement with a company that is proposing to locate in the municipality, has to indicate there is a discussion about a development agreement but would not have to name the company that the development agreement would apply to. There is a fine line between notifying the public of the purpose for the closed session meeting and the need to retain confidentiality because of the topic of the closed session. Local governments would be well-served to provide more detail about the statutory exception relied upon for adjourning into closed session and also provide some detail about the topic to be discussed in closed session without adversely affecting the need for confidentiality. Closed session agenda items should be reviewed closely with legal counsel to ensure compliance with the statutory requirements.

Off-Duty Conduct - Taking Adverse Employment Action

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

There is a lot of controversy today about the right of an employer to take adverse employment action (i.e. firing someone) for off-duty conduct. Employers have more access to things happening outside the workplace and are very concerned about their overall reputation in the community. Unfortunately, there are various laws that protect an employee from any type of adverse employment action because of lawful off-duty conduct. The most obvious protection is found in Wisconsin statutes which provide that it is discrimination to take adverse employment action against someone who engages in lawful off-duty conduct involving the use of products. This law was written to prevent discrimination against an employee who smokes off-duty when the employer prohibits smoking in the workplace. This law has been expanded, however, to cover many other types of uses of lawful products during off-duty hours. One example is medical marijuana that would be considered a lawful product in some states that could be used during off-duty hours although employers still may discipline an employee if the presence of marijuana exists when the employee is in the workplace. Another example might be use of caffeine before coming to work. Another law that protects employees for lawful conduct is the possession of concealed carry weapons when off work. Employers may not prohibit an employee from possessing a weapon and leaving it in their personal vehicle on Company property even though an employer can prohibit an employee from having a concealed carry weapon in the workplace. This again is an area where employers are limited in how they can address the conduct of an employee during off-work hours. A more difficult area to assess is the use of social media by an employee during non-work hours. The National Labor Relations Board has issued a number of decisions holding that an employer may not restrict what an employee says on social media about the workplace because a restriction would constitute a violation of the rights of an employee to organize or to comment about working conditions. The content of a social media post may be subject to some scrutiny by an employer but much will depend upon the nature of the comment and whether the comment addresses an issue of protected speech under the National Labor Relations Act. Regulating the off-duty conduct of an employee is something that has come under a great deal of scrutiny both through legislative acts and legal rulings. Employers must be very careful when considering adverse employment action against an individual because of what they have done during non-work hours. Employers still have the right to protect the reputation of their business but the limits to that protection require a great deal of scrutiny before action is taken.

Micro-Unions: Is This The Future?

Posted on July 31, 2014, Authored by Dean R. Dietrich, Filed under Employment

Two recent decisions by the National Labor Relations Board in the retail sector have again raised questions about the new concept of micro-unions. A micro-union is a union representing a small group of employees within a large employer. This phenomena has created a significant stir in the legal community because of the potential for a Company being ordered to recognize a bargaining unit of a particular division or department rather than a union representing all employees at a location. Great concern arises of the potential foot in the door scenario where a union election is held amongst a small bargaining group and then the union becomes recognized for that small group in the Company with the potential for the union to recruit from the inside to represent more employees of the Company. In one recent decision, the National Labor Relations Board recognized a bargaining union for cosmetic and fragrance workers of Macys, Inc. which was comprised of 41 employees in its Boston area store employees. This decision implemented the Specially Health Care and Rehabilitation Center of Mobile decision which, in the health care field, was the first decision recognizing a bargaining unit for a separate division of a large health care/nursing home facility. The Macy decision opens the door to the recognition of small bargaining units for a large retail business. In another decision, however, the NLRB refused to recognize a bargaining unit of womens shoe sales workers on two floors of the Manhattan based Bergdorf Goodman store. In this decision, the NLRB refused to recognize a small bargaining unit of employees that worked on two floors in the main store of this large retail enterprise. This decision contradicts the previous decision in Macys, Inc. matter and raises significant questions about how the micro-union principles will be applied in the retail industry. Employers should recognize the potential for union organizing efforts in a small division of a big company. Unions will use this strategy to get a foothold in the company and then work from there to encourage more employees to be represented by the union. Employers must remain ever sensitive to potential union organizing activities in either an overall bargaining unit or a micro bargaining union.