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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.

Obesity is a Disability?

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

A number of activities over the past several months have suggested that obesity is on its way to being considered a disability and therefore protected under federal discrimination laws and possibly the Wisconsin Fair Employment Act. No decision has been made holding that obesity is a disability under Wisconsin law, but several things at the federal level may change that view. First, the American Medical Association has recognized obesity as a disease in its new publication of the comprehensive list of diseases. (See prior Blog regarding caffeine addiction as a new disease). Further, the Equal Employment Opportunity Commission has withdrawn its prior guidance which held that obesity at less than the morbid level was generally not considered a disability. No guidance from the EEOC has been issued to replace this conclusion which raises a concern that EEOC may modify its position on the characterization of obesity as a protected disability. Concerns have also been raised about wellness programs that deal directly with obesity as perhaps falling under disability discrimination coverage. Employers must be careful not to directly target employees that would be considered obese or fail to consider medical treatment as a type of participation in the wellness program for those suffering from this condition. Simply stated, there is a change in the wind that may affect how we view obesity and whether it is considered a disabling condition under federal and possibly state law. Employers that have implemented a wellness program should be careful how that program is implemented and make sure that it does not create undue conditions for individuals that may be considered obese.

Are Quickie Elections Coming in 2014?

Posted on December 16, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent action by the National Labor Relations Board (NLRB) has signaled that a new rule on "quickie" elections will be up for debate (and likely passage) in 2014. Several days ago, the NLRB voluntarily dismissed the appeal of a federal District Court decision which held that the Board's expedited representation election process was invalid because the Board lacked a quorum at the time that it issued the rule in December of 2011. This action was taken by the NLRB because it now has a full complement of members, and it is strongly anticipated that the Board will re-do the "quickie election" rule in early 2014 and re-issue such a rule for future union elections. Under the "quickie election" rule, there would be significant changes to the pre-election and post-election procedures used by the NLRB. Under the past version of the rule, there would be a limitation on the scope of a pre-election hearing used to determine whether or not there is a question concerning representation and also eliminated restrictions that required an election not take place sooner than 25 days after the date of a Direction of Election issued by the Board. Under the previously proposed rule, an election could be held within 10 days of a Direction of Election which will greatly impact the ability of an employer to conduct a campaign against the union organizing effort. The previously issued rule also provided an alternate procedure for elections to be conducted without a full determination of the eligibility of employees to be included in the election proceedings and gave broad discretion to hearing examiners to limit the amount of legal arguments and briefing that would be made in pre-election proceedings. Employers need to be aware of this anticipated new rule on "quickie elections." There may be little time for an employer to react to a union election petition if the new rule is adopted with similar limitations on the election timeline. Employers will have to be ever-vigilant to determine if there is a union organizing campaign undergoing in their facility and then be prepared to respond immediately to deliver the company message about the need to a union.

Arbitrate Your Employment Disputes?

Posted on December 17, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the 5th Circuit Court of Appeals overturned a ruling from the NLRB and held that an agreement between an employer and employee that provided for arbitration of any disputes (including class-action claims) was valid and did not violate the employees right to pursue collective action to complain about an issue in the workplace. This recent decision overturns decisions from the National Labor Relations Board that restricted an employer from using arbitration agreements as part of an employment contract with employees. This decision allows employers to use an arbitration clause in an employment agreement to address employment disputes, there was a partial victory for the NLRB in this Court of Appeals decision. The Court held that an arbitration provision in an employment contract must clearly state that the signing of the agreement does not eliminate the right of an employee to address certain employment issues by filing a claim with the National Labor Relations Board. Claims would include retaliation or termination for engaging in concerted activity which is protected conduct related to employees seeking representation from a union. While this decision gives back the opportunity for employers to enter into an employment agreement requiring arbitration of all types of disputes in the workplace; many employers are struggling with whether to use this tool as part of the employment relationship. Arbitration allows for an expedited procedure to determine a workplace dispute with an employee but also takes away some of the procedural protections that exist if a matter is tried in the courts. For example, sometimes the court procedures can stop a claim from proceeding to a hearing through summary judgment motions. Arbitration is a vehicle used in collective bargaining agreements with a great deal of frequency to resolve disputes between an employer and a union over interpretation of the language in the collective bargaining agreement. Using this process to resolve employment disputes does have some attractiveness because of the expedited process and the ability to pursue claims through this informal process rather than with the formality of a court proceeding. Employers need to assess whether this is something they want to use to control the cost of litigation and the process that will be followed to resolve employment disputes.

Interactive Process is a Must

Posted on January 28, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the Seventh Circuit Court of Appeals (which covers Wisconsin) again emphasized the absolute necessity that an employer engage in an interactive process with an employee claiming a disability before making any decision regarding accommodations or continued employment by the employee. In reviewing a lower court's decision to grant summary judgment in favor of the employer on a claim of disability discrimination by an employee suffering from narcolepsy, the Court of Appeals ruled against the employer and referred the matter to the trial court to assess the disability discrimination claim. The Court of Appeals did uphold the dismissal of an FMLA claim, because the employee did not provide proper medical documentation of a medical condition that warranted time off for medical leave purposes. In overturning the trial court judgment, the Court of Appeals found that the employer made a decision to terminate the employee before learning of her covered condition of narcolepsy because she repeatedly fell asleep in the workplace. The employer asked for medical information from the employee to explain why she continued to have difficulty staying awake but then decided to terminate the employee before reviewing the medical information which indicated the employee suffered from the sleeping disorder of narcolepsy. The Court of Appeals was very specific in finding the employer was aware of the medical condition but did not engage in any type of discussion with the employee about the medical condition and possible accommodations that would allow the employee to be successful in the workplace. This decision again emphasizes the absolute importance of engaging in an interactive process with an employee that is claiming a disability that requires some type of accommodation in the workplace. An employer is not bound to make an accommodation depending upon the specific facts but certainly must engage in a discussion with the employee before making any final decision about an accommodation request or even the existence of a disability that would warrant considering a possible accommodation. The failure to engage in an interactive process may not be an independent basis for liability but it is certainly a basis for a court to consider whether the employer has acted in a discriminatory manner.

Minnesota Joins Other States in Protecting Applicant Information

Posted on January 13, 2014, Authored by Dean R. Dietrich, Filed under Employment

As of January 1, 2014, employers in Minnesota may not ask an employee for information about their criminal background in the employment application process. This is known as "Ban-the-Box" law which has been passed in seven states, and similar laws are pending in 26 other states. The law prohibits employers from having a question on their employment application where the applicant would "check the box" and indicate their criminal background or conviction record history. Legislation of this type is not pending in Wisconsin but would apply to a Wisconsin employer that has a business in Minnesota and is hiring employees for that business. This type of legislation is one of several pieces of legislation that are being considered throughout the country relating to workplace privacy. Another example is the legislation that prohibits an employer from asking for the Facebook password of an employee or applicant to investigate information posted by the individual on Facebook. We can anticipate a number of changes in the area of workplace privacy and the expectation of privacy given to an employee. Much of this will change how the employer can investigate the actions of an employee or discipline an employee for things stated on a Facebook page or other social media conduit. Legislation at the state level and federal level will likely be debated throughout the course of this year that expands these employee privacy rights. Each employer should be careful and make sure they are in full compliance with restrictions that exist under these legislative enactments.

A New Game - Who is Exempt and Who Receives Overtime Pay?

Posted on March 13, 2014, Authored by Dean R. Dietrich, Filed under Employment

As you may have seen in several news reports, President Obama is today directing the Department of Labor to re-write the regulations that identify who is exempt from overtime pay requirements under the Fair Labor Standards Act. The Fair Labor Standards Act does not apply to executive, administrative and professional employees. There are certain minimum requirements to meet any one of these exemptions, but those minimum requirements have not been difficult to meet in most instances. We can now anticipate a change in those minimum requirements and an extension of overtime pay requirements to many more employees. Obviously, this is just the beginning of a journey. We are not sure how the regulations will be re-drafted, and we certainly can anticipate litigation challenging any changes to the regulations that expand overtime pay requirements. This is not something that we need to respond to immediately, but it is something we need to watch to see if adjustments need to be made to ensure that certain types of positions are still considered exempt and not subject to overtime pay requirements. We assume the target will be middle-level administrators and supervisors who are legitimately responsible for supervising a number of employees but do not exercise decision-making authority for the organization. This is always an area of questionable exemption because of the nature and scope of decision-making authority exercised by these positions. For now, keep an eye on the news and polish your game piece because we will be up to our knees in a new game in the near future.

Indefinite Leave As Reasonable Accommodation?

Posted on December 4, 2013, Authored by Dean R. Dietrich, Filed under Employment

Deciding what to do when an employee says she cannot return to work because of a medical condition, even after exhausting all FMLA leave, is one of the most difficult questions faced by an employer, especially in Wisconsin. I have written before about the need for a Wisconsin employer to consider the possibility of additional time off without pay as a reasonable accommodation for an employee suffering from a medical condition who has exhausted all FMLA leave available. I have always assumed, however, that an employer was not obligated to give indefinite leave to an employee because that would, almost per se, be considered an undue hardship for the employer. A recent decision from the highest state court in the State of New York has raised doubts about my conclusion. In a recent decision, the highest court in New York determined that the employer had to show that the accommodation requested by a bank executive, that he be allowed indefinite leave because he did not intend to "abandon his position," was an undue hardship for the bank. This means that there is no accommodation that may be automatically excluded from consideration even if the accommodation is a request for indefinite leave. While this is a New York State and City of New York decision based on their law, the past interpretations of the Wisconsin Fair Employment Act would certainly suggest a similar result could arise for a Wisconsin employer. The New York court refused to dismiss the case and eliminated a "bright line" rule that we all thought was effective that being that an indefinite leave of absence would not be required. The court said the employer must show (1) that the employee could not with any reasonable accommodation, satisfy the essential functions of the job or (2) that the requested accommodation of indefinite leave would result in an undue hardship on the company. This standard is similar to the analysis that a Wisconsin lawyer must make. The case has been sent back for further hearings so this is not a final answer to the questions of reasonable accommodation and indefinite leave of absence but it raises the specter that a Wisconsin employer will be required to analyze whether or not an indefinite leave is a reasonable accommodation that may be considered as part of the interactive process with the employee. A Wisconsin employer must determine whether an indefinite leave would create an undue hardship on the company. Remember, in Wisconsin, an employer may be obligated to transfer some of the essential functions of the job that the employee was performing at the time of the medical condition and request for leave. This decision does not mean the end to a reasonable accommodation analysis but it does suggest that indefinite leave could become a consideration by an employer, especially if the company continues to function very well without the employee doing her job. One might also question whether the company needs that employee if that is happening.

What Now? Is a Temporary Impairment Now Considered a Disability?

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

Employers have always been told that an employee that suffers a temporary impairment or injury does not qualify as a disabled employee under the Americans with Disabilities Act. For example, an employee falling out of a deer stand and breaking his leg would not be considered disabled for purposes of an accommodation requirement under the Americans with Disabilities Act or the Wisconsin Fair Employment Act. Recent amendments to the ADA (known as the Americans with Disabilities Act Amendments Act of 2008) and a Fourth Circuit Court of Appeals decision may now suggest that a different answer applies. In a Fourth Circuit Court of Appeals decision issued on January 23, the Court stated that "a sufficiently severe temporary impairment may constitute a disability." This case involves an employee that travelled to the client of his employer while serving as an analyst conducting research and writing reports for that client. The employee suffered a serious injury when stepping off a commuter train on his way to work resulting in two surgeries on his leg. The employee was prohibited from putting any weight on his leg for six weeks, and it was estimated that it would be seven months before he could walk on his leg normally again. While the employee was hospitalized, the employee suggested that he receive short-term disability benefits and work from home during his recovery and even begin to work full-time from home until he was fully recovered. This request was never responded to by the employer nor did the employer suggest any type of alternative accommodation. Instead, the employer terminated the employee within a month after the injury occurred. This case is important for two reasons. First, the employer did not engage in an interactive process with the employee regarding the potential for accommodation which may have tainted the Court's view of whether a disability existed (see recent blog about the interactive process). More importantly, the Fourth Circuit Court of Appeals held that the 2008 Amendments to the ADA were designed to limit challenges to whether a disability existed and even noted that the EEOC regulations identified a disability to include such temporary things as a significant lifting restriction lasting several months. In other words, the Court of Appeals held that the temporary condition that this employee suffered from may be significant enough to warrant it being considered a disability even though it would only last for several months. The Court refused to uphold the summary judgment motion granted to the employer and instead referred the matter back to the trial court to determine if the employee suffered from a disability and whether the employer was required to provide an accommodation for that disability. The ruling in this case highlights the constant need by employers to look at the facts and circumstances surrounding an employee's claim of disability and request for an accommodation. Employers cannot just say that it is a temporary condition and therefore does not constitute a disability under the applicable state or federal law. Employers will need to take more time to assess and understand the medical condition being experienced by the employee and then determine whether or not the condition would constitute a disability and require some sort of accommodation.

Traveling to Work - New Employer Liability

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

Employers understand they may be liable for employee injuries that arise while an employee is reporting to work, such as an automobile accident on the way to work or an injury when walking into the company premises from the parking lot. These potential areas of liability arise from the worker's compensation statute in the state of Wisconsin that provides generous benefits under circumstances where an employee is in the process of reporting for work. There are cases starting to develop on the West Coast (California) which suggests an employer may be liable for injuries caused by an employee to another person while the employee is traveling into work. These cases arise under the theory that the employer requires the employee to use her vehicle during work hours, therefore travel from home to work is connected to employment because of that requirement. Different jurisdictions in California are split on whether or not an automobile accident that occurs while an employee is driving into work would result in liability to the employer for injuries sustained by another person. Several cases are working their way through the California court system with different results so a final clarification of potential liability will happen in the near future. There is no clear ruling on this topic in the state of Wisconsin. Employers can be held liable for injuries an employee suffers while traveling to or from work under various theories in the worker's compensation arena but no clear ruling has found an employer liable for injuries caused by an employee coming to work who becomes involved in an automobile accident and injures another person. The connectedness to the company and the requirement that an employee have a vehicle at work to perform her duties is the linchpin to finding the employer responsible for the injuries suffered by another person but a case of that type has not been ruled upon in Wisconsin. It is another area of potential employer liability we must be concerned about. As we embark upon a new year, Ruder Ware will continue to blog about new developments in the field of employment and labor relations law. Happy new year to everyone.

First Quarter Touchdown for Student Athletes

Posted on March 28, 2014, Authored by Dean R. Dietrich, Filed under Employment

Football players under scholarship at Northwestern University can unionize based upon a decision from the Regional Director of the National Labor Relations Board. This is a touchdown in the first quarter for the student athletes as this is the first stage in a litigation that will likely run for several years. The Regional Director held that the student athletes playing football for Northwestern University (a private institution) could form the union called College Athletics Players Association which is sponsored by the United Steel Workers Union. A vote is likely to be held in the near future. The leaders of the Players Association want compensation for scholarships, medical expenses and an increase in athletic scholarship funding from the University. The fundamental question in the Ruling was whether the student athletes were actually employees of Northwestern University. The Regional Director concluded that they were "employees" because the University exercised a high-degree of control over their day-to-day activities such that they were considered employees of the University. This is an amazing stretch of the definition of an employee and could lead to a significant change in how we view whether someone is an "employee" of a company. The concept of independent contractors may very well disappear if this type of reasoning continues. Employers must be careful and pay attention to this ruling because it may change a fundamental view of who is an employee of a company. It is predicted that this litigation will extend for two-plus years before there is any type of final ruling so we don't have to change how we consider employees right now. It is, however, amazing to think that an athlete going to school is considered an employee of the university simply because they are coached to play football and subject to player rules as a member of the team.

Light Duty Only for Work-Related Injuries  Pregnancy Discrimination?

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

Many employers have adopted a light duty policy that only applies for an employee that suffers an on-the-job injury. The theory is to allow light duty for work-related injuries in order to encourage an injured employee to return to regular duty. Such a policy of only giving light duty to work-related injured employees has often been questioned as being discriminatory because light duty is not offered to a disabled employee who suffers from a condition that is not work related. For the most part, however, courts have upheld such a policy on the basis that the criteria used to determine eligibility for light duty is not discriminatory in nature. A recent decision from the Sixth Circuit Court of Appeals has raised a significant question about this analysis. In an unpublished decision, the Sixth Circuit Court of Appeals reversed a lower court decision that dismissed a claim against a nursing home by finding that the "no accommodation for non-work-related injuries" policy did raise a question of discrimination on the basis of pregnancy. The nursing home did not allow a light duty assignment for a pregnant employee because the condition was not a work-related injury. The Court of Appeals dismissed a claim based upon disability discrimination and an alleged violation of FMLA but ordered a claim of pregnancy discrimination to go back to the lower court for a trial. This decision raises a question whether the no accommodation for injuries that are not work related policy will continue to stand. Many courts have held that an employer can choose to only provide light duty (an accommodation) if the injury is work related but that thinking may be subject to change at least as it relates to the condition of pregnancy if an employee is able to perform their regular duties during the pregnancy. We will need to watch this case closely to see if employers need to adjust their thinking regarding light duty accommodations.

Flu Shots - Required or Prohibited

Posted on November 27, 2013, Authored by Dean R. Dietrich, Filed under Employment

Many states have adopted laws that require mandatory influenza (flu) vaccinations for certain health care professions. A recent hearing on Wisconsin Assembly Bill 247 would take the opposite direction. This proposed legislation would prohibit employers (including health care employers) from taking adverse employment action against an employee who refuses to receive a seasonal flu vaccination. The bill would also prohibit Wisconsin employers from refusing to hire or refusing to renew the contract of someone because of their status of receiving or not receiving a seasonal flu vaccination. In addition, an employer would not be allowed to require an employee or contractor to receive a flu shot if the individual refuses to accept it. An employer also could not require unvaccinated employees or contractors to wear masks as an alternative to not taking a flu shot. In other words, this legislation would prohibit an employer from taking any action that would adversely affect the employment of an individual employee or a contractor that refuses to take a seasonal flu vaccination. Employers, under this proposed legislation, would be required to inform employees in writing that they may refuse a flu vaccination without suffering discrimination or retaliation from the employer. Employers would also be required to offer employees or contractors written information discussing the risks and benefits of receiving the flu vaccination prior to its being administered by the company. If employers are requesting that their employees or contracted persons receive a flu shot, the employer will be required to arrange for the vaccination at no cost to the person receiving it. This proposed legislation has received a number of criticisms especially from state agencies that believe that a vaccination should be given to those employees in jobs that routinely expose themselves to the flu virus. Many employers have implemented a mandatory vaccination program for those types of positions. The proposed legislation would prevent mandatory vaccination requirements and prevent any discrimination or retaliation against an employee that chooses to not have a seasonal flu vaccination. The proposers of the legislation side with the argument of personal freedom to choose an individuals health care rather than a requirement that the employer can impose upon certain employees that they must receive the vaccination. The Wisconsin Senate will not be in session until after the first of the year, so it is unlikely that this legislation will move anywhere quickly but it is an indication of the controversy that exists when talking about mandatory health care requirements.

Asking Questions of a Disabled Applicant

Posted on January 8, 2014, Authored by Dean R. Dietrich, Filed under Employment

One of the most challenging situations faced by an employer is deciding whether or not to question an applicant about their condition when it is obvious the applicant suffers from some type of disabling condition (i.e. applicant arrives in a wheelchair or uses crutches). Employers are afraid to ask questions that could be used to support a claim that the company discriminated against the applicant because of the obvious medical condition. Sometimes, applicants self-identify they are suffering from some type of disabling condition without being asked and then the employer must decide whether or not to pursue questions to determine whether the applicant is qualified for the position. Whether or not an employer should ask questions of an applicant that displays obvious disabling conditions is challenging but really involves applying some common sense to the situation. An employer cannot ask what type of condition or what are the limitations caused by the condition but certainly can ask the applicant how they would be able to perform the identified duties and functions of the position. In other words, the employer can look to the job description and ask the applicant whether they have the ability to perform the tasks identified in the job description and even ask the applicant to demonstrate how they would perform the function with or without an accommodation. The employer representative should not ask what type of accommodation is needed unless the applicant indicates that an accommodation would be necessary to perform functions of the job. Applicants that suffer from an obvious disability or indicate they suffer from a disability are often looking to trap an employer into hiring the applicant either because of fear of discrimination or fear of asking questions about how the applicant would perform the job duties. Interviewers should be prepared with a list of questions in those instances where an applicant has an easily identifiable disability or is open about identifying a disability during the interview process. It is always important to have a job description that can be referred to, to get information from the applicant on how they would perform the duties of the position.

Vote Now and be Excluded Later

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

Our recent blog talked about a proposed rule from the NLRB to establish new procedures for union elections. Known as the "quickie election" rule, it has been proposed by the NLRB for comment although there are strong indications that the rule will be adopted as proposed. One of the most significant aspects of the proposed new rule is how the NLRB will determine whether or not an employee is eligible to vote in the union election. The current rule allows for a hearing to determine whether or not certain employees would be considered supervisors and therefore ineligible to vote in the election (the most common issue litigated). Under the new rule, issues involving voter eligibility that involve less than 20% of the entire proposed bargaining unit would be decided after the election is held. Thus, certain employees who may actually be supervisors, would be eligible to vote in the election and if they are found to be a supervisor at a later date, the employee would not be included in the bargaining unit. The significance of this rule change for employers is that an employer may not be able to meet with these employees (who may or may not be supervisors) and discuss the union election or use these employees as part of its campaign against the union election. These employees who may be supervisors are a critical piece of the strategy that an employer can use to defeat a union election, but if their status as a supervisor is not determined until after the election, an important tool of the employer is lost. Employers must recognize the union election process will be changing significantly under this proposed rule. Employers must develop anti-union strategies now and implement them constantly in order to avoid what has often been called an ambush election petition from a union. More information about the "quickie election" rule will be included in our upcoming Blogs.

"Quickie Election" Rule Under Attack

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

The National Labor Relations Board will be holding public hearings on April 10 and April 11 regarding the proposed "quickie election" rule that would expedite the election process and reduce the ability of an employer to campaign against a union representation election. Several prior blogs have addressed some of the elements of the proposed rule, but now the U.S. Senate may take up legislation that would override the changes in the proposed rule. Two pieces of legislation have been proposed in the Senate. The first would set specific timelines for the conduct of a union organizing election by using the current 38-day requirement for holding an election, being 38-days after the petition has been filed. The proposed legislation would also establish different timeline requirements for providing the Excelsior List to the union similar to what is currently required under the NLRB election rules that exist today. A second piece of legislation centers around privacy concerns and would limit the type of information a company would be required to provide to a union after an election petition has been filed and a hearing held on who is eligible to vote in the election. The bill would limit the employer to providing one method of communicating with the employee such as phone number or e-mail address, which would depend upon the method preferred by the employee. This legislation counters the proposed rule requirement that addresses, phone numbers and e-mail addresses must be provided in the Excelsior List. One of the more important aspects of the proposed legislation would be to continue the requirement that a hearing be held to determine who would be eligible to vote in the election if there is a contest over which employees are eligible to vote. The proposed new rule would only allow a contest regarding election eligibility if more than 20 percent of the eligible employees were in dispute. Under the proposed legislation, a hearing would be held to determine whether employees would be eligible to vote or not eligible because of their supervisory status. The employer would be allowed to file a brief after a hearing and then a decision would be made by the NLRB Regional Director before any election would be held. It is obvious the issues regarding the "quickie election" will be the subject of a great deal of debate over the next several months. Stay tuned for more information.

25 Days or Less

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

The notion of 25 days or less is the new watch word for the National Labor Relations Board and the proposed rules on "quickie elections." The NLRB has promulgated new rules that are subject to public comment which would expedite the union election process to be less than 25 days from the filing of a petition by a union seeking to represent employees of a company. This compares to an average of 38 days under the current rules regarding a union election. The importance of this time differential is that it reduces the amount of time that a company can campaign against the union election. Over the next several weeks, we will give you information about the proposed rules that create a new "quickie election" process. It is very important that non-union employers recognize that the union election process will change drastically under these proposed rules. Unions will be allowed to file a union election petition and have the election held in a very short timeframe even if there is still confusion and disagreement over which employees should be eligible to vote in the election. One of the mainstays of the proposed rule is that a Regional Director of the NLRB must schedule a hearing within seven days of the date of service of the election petition on the employer unless special circumstances exist. The current rule allows for the scheduling of a hearing within 14 days, so the timeline is cut in half. This hearing is used to determine whether certain employees are eligible to vote in the election, such as employees that are considered supervisors. Currently, an employer is allowed to file a written brief within seven days after a hearing to determine the eligibility of certain employees. Under the proposed rule, there would be no allowing for a post-hearing brief unless approval is given by the Regional Director. This again reduces the amount of time from the filing of the petition to the actual date of the election. Watch our blog for some additional information about the proposed NLRB rule on "quickie elections."

Happy New Year (?)

Posted on December 31, 2013, Authored by Dean R. Dietrich, Filed under Employment

This is the time of year that we say "thank you" and "best wishes" to all. On behalf of Ruder Ware, I want to thank all of our clients for the confidence they have shown in our representation. I also want to thank all of the human resource professionals who have spent the year working hard to ensure the success of their organizations and helping employees become productive and valuable to the company. Many things have happened this past year in Wisconsin that have been helpful to employers and future changes, like the unemployment compensation law changes, will also be helpful in 2014. This is also a time to look forward to the new year. I am afraid that the new year will bring many serious and difficult challenges for employers. Two of the most significant challenges will be the "quickie election" process and the "micro-union" bargaining unit interpretation. Both of these changes will make it easier for unions to organize all or a portion of a company workforce. The "quickie election" process will likely be re-proposed this spring and will make it far easier for a union to pursue a representation election and limit the time that a company will have to campaign against that union representation petition. Employers will need to be very vigilant about any type of union representation discussion in order to react quickly in what will be a very quick process. The "micro-union" recognition process will allow a union to petition for representation of a portion of the workforce without having to obtain a successful election amongst the entire company workforce. Petitions may be filed to allow for representation of employees in a particular department or a particular location with far more ease than currently allowed. The new General Counsel for the NLRB has indicated that he will re-issue the rules that will address the right of a union to pursue a limited bargaining unit amongst the entire workforce. This could allow for many small unions pursuing different wage and working-condition requests with the same employer. All of this means that human resource professionals and company officials need to be highly-attuned to what is happening in the workforce and the potential for union representation activities. It will be a challenging year as unions become empowered to pursue representation of employees with new vigor.

Turn Over the Voter List - You Have No Choice

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

We have written about the proposed "quickie election" rule being considered by the National Labor Relations Board which is designed to expedite a union election proceeding. Another element of the proposed Rule requires the employer to turn over a list of all individuals (names) that would be considered eligible to vote in the union election before the pre-election hearing starts. Under this new requirement, the employer must give the union a list of the names, work locations, work shifts, and classifications of employees in the bargaining unit that is being sought by the union. This is the earliest that an employer has ever been required to give information to the union about potential voters in the election. A failure to provide the information would preclude the employer from contesting any of the issues about appropriateness of the bargaining unit or eligibility of individuals to vote who are on such a list. The proposed rule also requires the employer to provide both the NLRB and the union more information than ever required before and requires the information be provided within a period of two-days after a decision that calls for an election. The employer is required to provide the names, home addresses, work locations, shifts, and job classifications for the eligible voters as has been required in the past. However, the employer is also required to provide available phone numbers and e-mail addresses that are known for the election-eligible employees. Failure to provide this information would result in a union filling an objection to the election results if the results are unfavorable. These two requirements again are designed to expedite the election process and provide far greater information to the union to assist it in campaigning for a positive vote in the election. With the providing of this information and the reduction in time to conduct an anti-union campaign, employers are at a significant disadvantage if a union files an election petition to seek representation of company employees. Employers must be ever vigilant about possible union organizing activities in order to avoid being caught in an "ambush election" by the union.

"Quickie Election" has First Hearing

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

... that employers have expressed about this proposed rule. One presenter noted that over 65,000 people wrote comments opposing the rule in 2011 when it was initially proposed, and t...

Unemployment Compensation Law Changes - Happy New Year?

Posted on December 9, 2013, Authored by Dean R. Dietrich, Filed under Employment

Wisconsin employers will receive some relief from the employee-focused unemployment compensation law in Wisconsin after January 1. The Wisconsin Legislature has passed a new law which makes a number of changes to the unemployment compensation law affecting Wisconsin employers. A number of the changes relate to the definition of misconduct which will make it harder for employees to qualify for unemployment benefits if they engaged in inappropriate conduct in the workplace. One of my colleagues prepared a detailed article about the law changes that will take effect on January 1. Read the article in our Employment, Benefits & Labor Relations Newsletter. Wisconsin employers should become familiar with these changes to better understand how to protect their interests and avoid a claim for unemployment benefits from a terminated employee. We can hope that this does mean a Happy New Year for Wisconsin employers.