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

EEOC Not Candid about Cameras: Uncertainty About Risks of Video Interviewing Remains

Posted on January 25, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent letter from the Equal Employment Opportunity Commission refused to give any guidance on whether it would be acceptable for a company to use a video interview to select candidates for hire. The EEOC refers to a number of articles and advice given by the Agency on its webpage, but refuses to provide guidance on whether it would be acceptable to require all candidates for hire to be subject to a video interview. Employers are trying every method they can think of to find the best individual to hire. The hiring decision is critical to the company and especially for those companies in the service industry. Obviously, there is concern that a video interview will result in an employer gaining more information about an individual and perhaps using that information to discriminate against an applicant. I do not see any difference between a video interview or a face-time interview. Employers should be allowed to make some judgments about suitability for employment based on direct contact with an applicant by in-person or video interviews. The EEOC enjoys investigating and bringing charges against employers, but now is refusing to give any advice to help an employer comply with federal law. I think we will be experiencing a high level of investigations and claims from federal agencies over the next several years.

Denial of Facebook Access is a New Employment Law Issue

Posted on January 3, 2013, Authored by Dean R. Dietrich, Filed under Employment

A teacher's aide in Michigan was disciplined for not giving her Facebook password to her boss. The boss wanted to look at her Facebook page because a picture of her coworker had been posted to the employee's Facebook page. The refusal to provide the password formed the basis for disciplinary action against the employee. Personally, I am not excited about the use of Facebook postings for discipline of employees. Both public and private sector employers do have the right to exercise some level of control over the postings of employees that negatively impact the reputation of the company. Unfortunately, this is a very subjective standard and could lead to further controversy over whether or not the employer had a reasonable basis to investigate the employee and determine if the employee had been abusing Facebook postings and damaging the reputation of the business. I think employers are going to be better off avoiding this type of activity when looking to investigate the off duty conduct of an employee, however, the case law surrounding this issue is very unclear. This will be the next level of challenge that will be subject to court review.

Reasonable Accommodation - The Most Difficult Employer Decision

Posted on February 21, 2013, Authored by Dean R. Dietrich, Filed under Employment

Deciding what is the best and most appropriate reasonable accommodation for an employee with a disability, is the most difficult judgment call that an employer has to make. Deciding how far to go when accommodating an employee with a disability is a matter of great concern to employers, but very little specific guidance is offered by the courts. Several recent decisions at the federal court level have held that an employer is not obligated to make accommodations for an employee, that results in the employee not having to perform some of the essential functions of the position. Defining what are the essential functions of a position can be tricky, but is also based upon known facts and a review of a position description while tying it to the actual work performed by an employee in the position. Decisions by the federal courts under the ADAAA have clarified that an employee who is not able to perform the essential functions of the job, is not entitled to an accommodation that eliminates some of those essential functions from the work that the employee would be required to perform. This type of question of what is a reasonable accommodation, is even more difficult for Wisconsin employers. Court decisions in Wisconsin have not held to the strict standard that essential functions may not be transferred away from an employee's work assignment. Wisconsin Courts apply the "hardship" test, and will look on a case-by-case basis to determine whether it would be an undue hardship for the employer to transfer work away from an employee that suffers from a disability. There are no rigid guidelines for an employer to follow but rather each employer must assess whether the accommodations being requested by the employee will constitute a hardship for the Company. We are detecting some shift to make it clearer that essential functions of a job must be performed by the employee with a disability but the Wisconsin courts have by no means made a blanket statement to that effect. We continue to monitor these court decisions to help provide guidance to employers in this difficult area.

Can You Require An Employee To Be At Work?

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

I am often asked whether attendance at work can be considered an essential requirement of a particular job. Logic would suggest the answer to that question, but of course, court decisions would suggest differently. A recent decision by the 9th Circuit Court of Appeals related to an employee who suffered a serious medical condition that limited the employees sleep and caused chronic pain. The employee sought to be relieved from the strict attendance policy of her employer. When the company did not provide extra accommodation, the employee sued under the Americans with Disabilities Act. The 9th Circuit Court of Appeals held that the company was required to show that attendance was an essential function of the job, but the Court also acknowledged a number of prior court cases that held that an employee must be at work in order to be part of a team. The Court ultimately held that because of the nature of the job performed by the employee, the employee must be at work. The Court did acknowledge that other jobs could be viewed differently if the job could be performed from home or there was not an established requirement for teamwork with other employees in order for the job to be properly performed. Employers must be careful when establishing attendance policies to make sure they are reasonably related to the jobs being performed by each of its employees.

Time to Rethink Use of Credit Reports

Posted on December 29, 2012, Authored by Dean R. Dietrich, Filed under Employment

I read that Vermont was the 8th state to regulate the use of credit reports or credit-related information for doing background checks. It may be time to rethink the use of credit-related information for conducting background checks or making other employment decisions. Eight states have now passed legislation that regulates the use of credit-related information for employment purposes. Wisconsin has been a leader in establishing protected categories, such as arrest and conviction record or use of lawful products during non-work hours. Employers have to be very careful what they do when conducting a background check to make sure they do not acquire information that can be used against them when challenging an employment decision, particularly in the area of deciding which employee to hire. It may be best to limit the use of credit-related information, because it is hard to show that credit-related information is directly related to the hiring decision. This is like the use of social media as a background check vehicle; you may acquire more information than is necessary and may place you in a difficult position to avoid the use of information you have learned during an aggressive background check. Employers should be cautious about the use of this credit-related information when making employment-related decisions.

Conflicts of Interest when Representing a Family Business?

Posted on January 15, 2013, Authored by Dean R. Dietrich, Filed under Employment

I recently spoke at the State Bar Business and Real Estate Transactions Institute on the topic of conflicts of interest when representing a family held business. This is a very difficult area because of the potential for conflicts between the individual clients and the business entity. The representation is made even more difficult because the individuals expect the company to pay for the representation even though the lawyer is providing advice for the individual that benefits the individual and not the corporate entity. Many times, the representation has a common interest and the parties are not adverse  this requires careful review of whether there is adversity in the representation of the corporate entity and the representation of the individual owners. Lawyers need to look beyond the specific question being asked to make sure that the advice to be given is not creating a benefit for one party to the detriment of the other party. It is always best that the lawyer be open about the potential for adverse consequences and make sure that the individual client understands that the lawyer is providing advice in relation to representation of the corporate entity. In some instances, it may be necessary to obtain a waiver of conflicts of interest after the lawyer has clearly explained that there are interests relating directly to the individual and interests relating directly to the corporate entity that must be considered. Lawyers must be very careful to ensure that they are not violating the conflict rules when representing a family held business and individuals from the family held business.

Who Is Really Running Your Business?

Posted on March 1, 2013, Authored by Dean R. Dietrich, Filed under Employment

Recent events at the state and federal level have again put in question who is really running businesses today. The National Labor Relations Board (NLRB) through various opinions and rulings, has said that any business, even if not unionized, may not take disciplinary action against an employee for certain types of statements made on social media, if those statements are derogatory to the company or individuals in the company. Through these opinions and decisions, the NLRB has become an arbiter of whether or not a company can protect its reputation or take disciplinary action against an employee that complains about company operations. While each case is viewed on its own facts, there is a strong learning towards the prevention of disciplinary action against an employee that may criticize the company or company officials in social media settings. A recent proposal from Governor Scott Walker eliminated the right of local government units to require their employees to live within their community boundaries. While some would say this eliminates an archaic local policy, the ability of a local government unit to decide what is best for its employees is eliminated when it comes to where the employee can live. This sometimes is a matter of concern for public safety and protection and also a concern regarding the hiring of the best candidate for a job, but that balancing act would normally be done by the governing board when deciding its local policy. These are interesting developments, and signal a continued movement to place control over decisions made by a local government or a local business. Elected officials and business owners must be careful when making business related decisions recognizing that other entities are looking to control the decision-making process. The best thing to do is to train managers to make decisions uniformly, and avoid decisions that are made based on the wrong facts or for the wrong reasons.

Legal Advice on a YouTube video? It happened.

Posted on January 18, 2013, Authored by Dean R. Dietrich, Filed under Employment

Something has happened in my law practice that has never happened before. I have given legal advice to a client based upon a YouTube video. Peter Davis, legal counsel for the Wisconsin Employment Relations Commission, was included in a video post on YouTube. In that video post, he indicated that public employers should calculate base wages and use as the base wage for an employee in a position that requires a master's degree, the master's column on the teacher schedule and the wage rate for the experience of that particular employee. The employee would not get credit for additional master's credits, but the calculation would start from the master's column of the old teacher schedule. This is different than the advice given by the WERC Commissioner in her dissent to the new base-costing rule. I never thought I would be giving legal advice based on a YouTube video. The legal practice is certainly changing.

Federal Court is Asked to Hold Enforcement of Act 10 Order

Posted on January 6, 2013, Authored by Dean R. Dietrich, Filed under Employment

The Western Federal District Court, in a recent decision, held that several provisions of Wisconsin Act 10 were unconstitutional. The provisions included the section that required public unions to recertify every year by a majority vote of all employees eligible to vote to be in the union. The decision also struck down that provision of Wisconsin Act 10, which prohibited the deduction of voluntary dues payments from an employee paycheck. Last week, the Wisconsin Attorney General, on behalf of the state of Wisconsin, sought a stay from the Federal Court judge of his order striking down provisions of Wisconsin Act 10. The Wisconsin Attorney General indicated that there will be an appeal of the district court decision and ask the judge to stop the enforcement of his order pending the appeal. It is unlikely that the Federal District judge will stay his order. As a result, the prohibition against annual recertification elections will likely stand. Further, public employers will be required to deduct dues from the paycheck of those employees that submit a voluntary dues statement. What is not clear is whether those unions who chose to not seek recertification are not automatically deemed the bargaining representative for public employees that were in the union in the past. It is likely that this issue will be litigated further by the parties.

Employment Blog Intro

Posted on December 22, 2012, Authored by Dean R. Dietrich, Filed under Employment

The world of employment and benefits law changes on a daily basis. New decisions come out defining the responsibilities of an employer or limit the ability of an employer to make business decisions. Lawyers at Ruder Ware are conscious of these daily changes and will use this blogspot to keep you updated about developments in the area of employment law and benefits law. Whether it is a recent court case or a recent development from federal or state agencies, we will use these blogs to communicate changes that may impact your everyday human resources activities. For example, a recent federal district court held that statements by a supervisor that a particular employee was mentally unstable could be used to determine that the company perceived a particular employee to be disabled and thereby protected under the Americans with Disabilities Act. We look forward to providing you with timely and relevant information to update you on employment benefits law activities.

NLRB Tells You What You Can Put in Your Policies

Posted on December 26, 2012, Authored by Dean R. Dietrich, Filed under Employment

Two recent decisions by the National Labor Relations Board again shows the intrusion of the Board into the business of running a company. In these decisions, the NLRB (by a 2-1 vote) held that an employer violated federal labor law by: Establishing a company policy that prohibited employees from disclosing confidential personnel information and documents to persons outside the organization; By establishing rules in an employee handbook that included a rule prohibiting employees from electronically posting statements that damage the company reputation or damage any individuals reputation. In both cases, the NLRB said that the policies adopted by the company violated federal law because it restricted the right of employees to address issues of wages, hours and conditions of employment that is protected under Section 7 of the NLRA, even in a non-union setting. The dissenting board member wrote that there was nothing in these policies that referenced union activity and it was not reasonable for the company to believe that employees construed the rule or policy to prohibit protected activity regarding union rights and individual rights. This is a continuation of an effort by the NLRB to place restrictions on what companies can do to control the activities of employees. This represents a very liberal interpretation of the Section 7 rights of an employee in instances when the company does not even refer to union organizing efforts or union activity in its rule or policy. Employers must be aware of this significant enforcement effort by the NLRB and be careful how they word their policies in an employee handbook.