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Searching for Articles published in February 2013.
Found 6 Results.

FMLA Spring Cleaning: Toss That Old FMLA Poster and Post the New One by March 8!

Posted on February 27, 2013, Authored by Sara J. Ackermann,

By March 8, 2013, employers covered under the federal Family Medical Leave Act (those with 50 or more employees) must display the Department of Labor's new version of the Employee Rights and Responsibilities Under the Family and Medical Leave Act poster. Where can I get the new poster? A copy is available via download from the DOL's website at: http://www.dol.gov/whd/regs/compliance/posters/fmla.htm. This most recent version of the one-page poster includes new changes to FMLA rights, including important changes relating to military and military caregiver leave. What are the military leave changes I need to know? Military caregiver leave is now extended to eligible employees whose family members are recent veterans with serious injuries or illnesses, including conditions that do not arise until after the veteran has left the military. The veteran must have been discharged within the five-year period before the eligible employee first takes FMLA military caregiver leave to care for the veteran. The definition of a serious injury or illness for both current servicemembers and veterans now includes serious injuries or illnesses that result from a condition that existed before the servicemember's active duty service and was aggravated by service in the line of duty on active duty. Qualifying exigency leave now must be offered to eligible employees with family members serving in the Regular Armed Forces, in addition to the National Guard and Reserves. Now there is also a requirement that for all qualifying exigency leave the servicemember (National Guard, Reserves, Regular Armed Forces) must be deployed to a foreign country. For a detailed outline of all the changes regarding military leave, see the Side-By-Side Comparison chart available for download at the DOL's website at: http://www.dol.gov/whd/fmla/2013rule/comparison.htm. Were new forms issued? The DOL issued new forms that employers can use to certify employees' use of military-related leave and also made revisions to the Notice of Eligibility and Rights and Responsibilities form. These forms are available on the DOL's website at: http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm. The specific form numbers are as follows: WH-381 - Notice of Eligibility and Rights & Responsibilities WH-384 - Certification of Qualifying Exigency For Military Family Leave WH-385 - Certification for Serious Injury or Illness of Current Servicemember -- for Military Family Leave WH-385-V - Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave Do I need to change my FMLA policy? Yes. Your FMLA policy will need to be amended to provide for the new military leave changes. If you have questions regarding the above, please contact Sara Ackermann, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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.

Drafting Enforceable Agreements Presentation

Posted on February 26, 2013, Authored by Sara J. Ackermann, Filed under Employment

I recently presented "Restrictive Covenants in Employment: Drafting Enforceable Agreements" at the State Bar of Wisconsin PINNACLE® 2012 Health, Labor, and Employment Law Institute. A video of the presentation can be seen here on the State Bar of Wisconsin's website. Source: Jan. 16, 2013 issue of WisBar® InsideTrack, published by the State Bar of Wisconsin

Board Stiff: NLRB's Rigid Approach to Confidentiality and Non-Disparagement Language Now Applies to Private Employment Agreements

Posted on February 15, 2013, Authored by Ruder Ware Attorneys, Filed under Employment

I recently published the following article in the Chippewa Valley Society for Human Resource Management newsletter - hope you enjoy! Just when the business community thought the National Labor Relations Board's (Board) aggressive, union-friendly agenda could not get any worse (or more likely, hoped and prayed the Board's agenda would not get any worse, but assumed it would) it did. On January 8, 2013, the Board continued its assault on once-innocuous confidentiality and non-disparagement provisions, expanding its reach beyond handbook provisions to include privately negotiated employment agreements. The case is Quicken Loans, Inc., No. 28-CA-75857 (Jan. 8, 2013). In Quicken Loans, Inc., a Board administrative law judge (ALJ) concluded that Quicken's standard Mortgage Banker Employment Agreement (Agreement) violated the National Labor Relations Act (NLRA) because it contained "overly broad and discriminatory rules," as explained below. The Agreement reads, in pertinent part, as follows: Pertinent Confidentiality Language You shall hold and maintain all Proprietary/Confidential Information in the strictest of confidence and that you shall preserve and protect the confidentiality, privacy and secrecy of all Proprietary/Confidential Information. ***** For purposes of this Agreement, Proprietary/Confidential Information means: (a) non-public information relating to or regarding the Company's business, personnel, customers, operations, or affairs; (b) non-public information which the Company labeled or treated as confidential, proprietary, secret or sensitive business information;' Proprietary/Confidential Information includes, but is not limited to, the following categories of information, irrespective of the medium in which it is stored'. ***** Personnel Information including, but not limited to, all personnel lists, rosters, personal information of co-workers, managers, executives and officers; handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses, and email addresses; Personal Information Pertaining to Company Executives and Officers including, but not limited to, personal and family information, personal financial information, investment and investment opportunities, background information. Pertinent Non-Disparagement Language The Company has internal procedures for complaints and disputes to be resolved. You agree that you will not (nor will you cause or cooperate with others to) publicly criticize, ridicule, disparage or defame the Company or its products, services, policies, directors, officers, shareholders, or employees, with or thought any written or oral statement or image (including, but not limited to, any statements made via websites, blogs, postings to the internet, or emails and whether or not they are made anonymously or through the use of a pseudonym). The ALJ concluded that the above language "would reasonably tend to chill employees in the exercise of their Section 7 rights." In other words, in the ALJ's view, most employees would interpret the above language to mean that communicating with co-workers or union representatives about the terms and conditions of employment for example, wages, benefits, hours and other working conditions was off limits and could lead to discipline (which is contrary to the NLRA's basic protection). Interestingly, the Board came to scrutinize the Agreement because one of Quicken's former mortgage bankers who Quicken first sued to enforce the contractual non-compete portions of her Agreement filed an unfair labor practice charge against Quicken. This new defensive litigation tactic is significant, and should cause all employers to carefully consider the wording of restrictive-covenant provisions before threatening to enforce, or ultimately enforcing through litigation, restrictive-covenant provisions within private employment agreements (e.g., non-competition, non-solicitation and non-disclosure provisions). In the wake of the Quicken Loans, Inc. opinion, human resources professionals are strongly encouraged to examine existing employment agreements for potentially impermissible language. Assuming impermissible language is present, one possible solution is to add disclaimers within these employment agreements to conspicuously disavow any intent to interfere with rights protected under the NLRA. Finally, Quicken Loans, Inc. represents a creative defensive tactic available to former employees who are sued for breach of contractual restrictive-covenant provisions. Therefore, employers must be even more deliberate before filing suit to enforce these provisions.

An Accommodation to Religious Accommodation

Posted on February 1, 2013, Authored by Mary Ellen Schill, Filed under Employment

Today the various federal agencies responsible for providing guidance on the Affordable Care Act issued proposed rules which just might satisfy the objections of religious employers to ACA's contraception mandate. It seems like every day another lawsuit is filed objecting to ACA's requirement that contraceptives be included in the list of preventative health services which must be covered first dollar (no co-pay or deductible). That requirement is effective now, but religious organizations were given a one year reprieve due to complaints that the mandate interfered with the free exercise of religion. The proposed rule issued today is supposed to ensure that eligible "religious organizations" (think churches) and "nonprofit religious organizations" (a nonprofit which holds itself out as a "religious" entity) would not be forced to "contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds." So how will that be done, while still providing access to contraceptive coverage first dollar to women who work for these institutions? Well, by forcing insurers of group health plans to provide separate, individual market contraceptive coverage at no cost for plan participants. In effect, the contraceptive coverage will be broken off from the group insurance policy and provided under a separate, stand along individual policy which is "free" and doesn't involve the religious employer's involvement. For self-funded group health plans, the TPA is supposed to work with a health insurer to obtain this insured contraceptive coverage. Will this work? I guess if this rather technical work around satisfies the objecting religious organizations that they won't be providing or paying for contraceptive coverage (since it will be free and under an individual policy), then maybe it will. But if the real basis for the objection is that the employees have access to contraceptive coverage (no matter who pays for it), then presumably some organizations will see this "accommodation" as anything but.

Scam Warning: Corporate Records Service Annual Minutes Form

Posted on February 1, 2013, Authored by Amy E. Ebeling,

State officials are warning Wisconsin business owners about "Corporate Records Service," a company sending out formal-looking "Annual Minute Forms" to Wisconsin businesses in an attempt to collect confidential information and fees for unnecessary paperwork.   The Wisconsin Department of Financial Institutions issued a news release earlier this week stating they have received numerous inquiries from business owners asking whether the form was a new filing requirement. The form is not a new filing requirement.   Corporate Records Service has sent out thousands of green envelopes to business owners across the country with the words "Important-Annual Minutes Requirement Statement" on the front of the envelope. Inside is an official looking form titled "2012 Annual Minutes Records Form" and a request for $125 to complete the "Annual Minutes Requirement Form."   If you receive correspondence from Corporate Records Service or receive any other request for business information, please exercise caution before completing and submitting any documentation or paying any fees.