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Searching for Articles published in March 2013.
Found 11 Results.

DOL Plans to Take Final Action on Revised Persuader Rules: Employer Community Remains Unconvinced

Posted on March 22, 2013, Authored by Ruder Ware Attorneys, Filed under Employment

According to the federal Department of Labor (DOL), it plans to publish a final rule in April 2013 revising its so-called "persuader rules" under the Labor-Management Reporting and Disclosure Act. The "persuader rules" have long obligated employers to disclose, in writing, certain activities aimed at thwarting union organization tactics but only under exceptional circumstances where labor-relations consultants or attorneys directly address employees. However, if the DOL has its way, that will soon change, and employers will be required to publicly report information including the identities of labor-relations attorneys, the specific legal activities these lawyers are hired to perform, and the legal expenses incurred in resisting union organizing efforts (information germane to union organizing campaigns that cause local union business agents to salivate). The DOL's revisions, which have quietly moved along without making waves, are expected by many to cause a tsunami in the labor-relations field. Under the DOL''s current "persuader rules," employers must disclose their consultant's and legal advisor's activities designed to persuade employees concerning whether to exercise collective bargaining rights (a battle for the hearts and minds of rank-and-file employees). However, the present "persuader rules" specifically exempt from disclosure/reporting activities that constitute "giving or agreeing to give advice" (the so-called "advice" exemption). Significantly, DOL's long-standing interpretation of the "advice" exemption is that disclosure/reporting is not required as long as the consultant or labor-relations lawyer has no direct contact with employees (meaning attorneys are free to orchestrate election campaigns, prepare videos and author speeches in the absence of direct contact). In other words labor-relations consultants and attorneys are presently free to provide employers with advice or materials that employers may directly use for purposes of persuading employees about the exercise of collective bargaining rights because this is only indirect contact with employees (e.g., ghost-written talking points for supervisory personnel to share with potential bargaining-unit members). As referenced above, in April 2013, the DOL expects to move ahead with a final rule to narrow the scope of the advice exemption meaning the exemption will no longer apply to the following (underscores added for emphasis): An oral or written recommendation regarding a decision or course of conduct All actions, conduct, or communications that have a direct or indirect object to persuade employees Providing material or communications to, or engaging in other actions, conduct or communication on behalf of the employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively Not surprisingly, this development has not been well received by those within the employer community. In the next few weeks, the current administration is expected to again bolster organized labor's efforts to recapture its past prominence so stay tuned (more administrative paperwork, another added bonus).

IRS Invites More Employers to Settle; Promises Process Will Not Open Pandora's Box

Posted on March 6, 2013, Authored by Ruder Ware Attorneys, Filed under Employment

On February 27, 2013, the IRS announced expanded eligibility for its Voluntary Classification Settlement Program (VCSP). As many employers recognize, the Obama administration has made misclassification of employees (misclassified as independent contractors) a priority enforcement objective. The VCSP is a program that permits employers (taxpayers) to voluntarily reclassify their independent contractors as employees for future tax periods, for employment tax purposes. Employers whose applications into the program are accepted should expect to pay 10 percent of the amount of employment taxes that would have been due on compensation paid to the workers being reclassified for the most recent tax year, calculated under the reduced rates of section 3509(a) of the Internal Revenue Code to some employers, a small price to pay given the exposure. Perhaps more significant, according to the IRS, participating employers will not be liable for any interest and penalties on the payment under the VCSP, and will not be audited for employment tax purposes for prior years with respect to the classification of the employer's workers implicated by the VCSP application. Until February 27, 2013, an employer that was already being audited by the IRS could not participate in the VCSP now, even if under an IRS audit (other than an employment tax audit) an employer can qualify for the VCSP. An employer that fails to file all required 1099s for the workers the employer seeks to reclassify, for the three-year period preceding the VCSP application, is not eligible for the VCSP. However, until June 30, 2013, this eligibility requirement is waived meaning even more employers are welcome to the party. NOTE: The "SS-8" determination process is NOT an audit even though my clients who have been through this process tell me it certainly feels like an audit (I agree). The SS-8 determination process is when an independent contractor files a request with the IRS to make a determination concerning whether he or she is really an employee for IRS purposes. It may be hard to believe, but there may be some employers out there that are skeptical of the VCSP, some that may view the voluntary settlement process as opening Pandora's box (you know, the innocent looking box [or jar, depending on who you believe] full of really evil stuff that Zeus gave to Pandora to get back at Prometheus for stealing Zeus' fire (that would make me mad too). An employer may fear that the IRS (or another government agency) may use information it voluntarily discloses against it (the agencies seem to be talking to each other more these days - perhaps the government has a "share everything" plan?). The IRS is aware of these concerns, and offers the following assurances. Q17: Will the IRS share information about VCSP applicants with the Department of Labor? A17: No, the IRS will not share information about VCSP applicants with the Department of Labor. Q18: Will the IRS share information about VCSP applications with state agencies? A18: No, the IRS will not share information about VCSP applications with state agencies. Q20: If I apply for the VSCP and my application is rejected, will I open myself up to an audit? A20: No, rejection of a VSCP application will not automatically trigger initiation of a Federal audit [NOTE an audit is different that the SS-8 determination process]. You could be audited for another reason, but not as a result for filing Form 8952 [the application form]. Employers may have questions or concerns related to participation in the VCSP. I completely understand the IRS carries a bigger thunderbolt than Zeus.

Attention Employers! New I-9 Form Required by May 7, 2013

Posted on March 12, 2013, Authored by Sara J. Ackermann,

On March 8, 2013, the U.S. Citizen and Immigration Services division of the Department of Homeland Security released a new I-9 Form. Here is a list of frequently asked questions regarding the new form: When do we need to start using the new form? The USCIS recommends that employers start using the new form immediately. However, employers MUST start using the new forms by May 7, 2013. Where can I get the new form? The I-9 Form is available for free at the USCIS website. You can access it by clicking here: Download Form I-9. Where can I get more information about the new form and how to complete it properly? The USCIS has updated its Handbook for Employers which provides helpful information on how to complete the I-9. To access the Handbook, click here: Download M-274, Handbook for Employers, Guidance for Completing Form I-9. What is the purpose of the I-9 Form? The form is used for verifying the identity and employment authorization of individuals. All U.S. employers must ensure proper completion of the I-9 Form for each individual they hire for employment in the United States. The employee must also present his or her employer with acceptable documents evidencing identity and employment authorization. Employers must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the I-9 Form. The list of acceptable documents can be found on the last page of the form. Employers must retain the I-9 Form for a designated period and make it available for inspection by authorized government officers. Employers who fail to properly complete and retain these forms can be subject to fines of up to $1,000 per form. Employers who willfully engage workers who are not authorized to work in the U.S. can be subject to fines of up to $16,000 per worker and criminal penalties. 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.

Stay of Act 10 Decision Denied by Court of Appeals

Posted on March 13, 2013, Authored by Ruder Ware Attorneys,

On Tuesday, March 14, 2013, the Wisconsin Court of Appeals denied a motion by Governor Walker and others to stay while that decision was being appealed Judge Colas' September 2012 ruling that declared unconstitutional certain portions of Act 10. As we reported in "Judge Colas Issues Decision to Deny Motion for a Stay of His Earlier Ruling re Wisconsin Act 10", Judge Colas was asked to stay his own decision in Dane County Circuit Court, and he refused to do so. His decision refusing to grant a stay was then appealed to the Wisconsin Court of Appeals, which yesterday ruled that a stay was not warranted. When all is said and done, Tuesday's denial means that the earlier Dane County Circuit Court decision is still in effect. In his September 2012 decision, Judge Colas agreed with the unions argument that Act 10 violated constitutional guarantees of freedom of speech, freedom of association and equal protection. In refusing to issue a stay to that ruling, the Court of Appeals stated that "[u]ntil the Wisconsin Supreme Court finally resolves the issues, either by issuing a definite ruling on the merits or by issuing an order declining to review a merits decision of this court, it seems that ongoing litigation is inevitable." Therefore, the Court of Appeals concluded the argument that a stay was needed to avoid litigation or confusion was not persuasive. The proverbial elephant in the room is in regards to who is covered by Judge Colas' decision declaring certain parts of Act 10 unconstitutional. Many argue that the decision is limited to the parties involved, the Madison Teachers Inc. and Public Employees Local 61, while others believe all local governments and school districts are covered. The Court of Appeals did not specifically rule on this issue, but it did in a footnote "reject out of hand the proposition that the [Colas] decision has the same effect as a published opinion" of the Court of Appeals or the Wisconsin Supreme Court. This comment gives support to the position that the Colas decision is limited to the parties involved. However, the Court of Appeals went on to say that it is possible another circuit court could in its discretion find that the doctrine of "issue preclusion" would apply and "effectively choose to follow the [Colas] decision" in a case involving another union. Confused? The Court of Appeals acknowledged that there is and will continue to be confusion as to the binding nature of the Madison Teachers decision. But since this confusion goes both ways (both employers and unions have to assess risk of bargaining or not bargaining over subjects which Act 10 prohibited) the Court of Appeals concluded that the parties themselves can take steps to minimize their risk, such as by negotiating conditional contracts, or by refusing to bargain and preparing for lawsuits by the unions which may ultimately be successful. While the Court of Appeals is expected to rule on the merits of the Dane County Circuit Court decision in the coming months, it is likely that this matter will not be fully resolved until the Wisconsin Supreme Court has an opportunity to weigh in. We are ready to assist municipal employers in assessing the risk of agreeing to bargain, or refusing to bargain, as a result of this most recent Court of Appeals decision. If you have questions regarding the above, please contact any of the attorneys on the Local Governments Focus Team, or the School Districts Focus Team of Ruder Ware.

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.

Deaf Candidates are Entitled to Interpreter During Interview?

Posted on March 26, 2013, Authored by Dean R. Dietrich, Filed under Employment

The Equal Opportunity Employment Commission has filed a federal lawsuit against Toys "R"' Us alleging that the Company violated the Americans With Disabilities Act when it did not provide a sign language interpreter to a deaf applicant at a job interview. The EEOC alleges in the federal lawsuit that a Company of this size would not have an undue hardship to provide an interpreter to an applicant when asked to do so. This suit was filed in the U.S. District Court in Baltimore and will certainly go through an exhaustive litigation process. This federal lawsuit raises an interesting question that is not easily decided. What obligations for an accommodation does an employer have for an applicant who is seeking employment with the Company? The federal standard is that the request for an accommodation must not create an "undue hardship." The standard in Wisconsin is that the request for an accommodation must be reasonable and not pose a "hardship" on the Company. This standard has been interpreted to require employers to make most accommodations that are requested by an employee or in this case, an applicant. Employers must be careful when interviewing candidates or reviewing candidate performance on skills tests to make sure that a reasonable accommodation has been offered to an applicant that suffers from a disability. This does not mean that you have to allow another person to come in and answer the questions for the applicant that you are interviewing, but you may be required to provide a sign language interpreter or a large-type computer screen for an applicant. A final decision on what is reasonable will depend upon the size of your business and the reasonableness of the accommodation request.

How Much Should You Get Paid for Getting Dressed in the Morning?

Posted on March 20, 2013, Authored by Dean R. Dietrich, Filed under Employment

The United States Supreme Court will be considering whether the time that an employee spends putting on and taking off work clothes is a compensable act which would require payment for time spent in that activity. A case involving employees of U.S. Steel Corp. has been accepted by the Supreme Court based on the issue of whether or not the time spent by an employee changing into work clothes must be paid for by the Company. The Seventh Circuit Court of Appeals (which covers Wisconsin) held that the Company did not have to pay union-represented employees for time spent at the plant changing into work clothes where part of the work clothes included personal protective equipment. Other Courts of Appeals have held that personal protective equipment is not "clothes" and therefore the employer must compensate the employee for the time spent putting on that protective equipment. That is often called the "donning and doffing" of employer-required safety equipment. This case will focus on whether or not an employer has to pay an employee who comes to work and then puts on work clothing at the work location should be paid for that time. There was also a question whether the time spent in "travel" from the locker room to the actual work site after the clothing was put on should constitute "travel time" under the Fair Standards Labor Act. Thankfully, that issue is not being addressed by the Supreme Court, thus the activity of walking to your work station is not considered paid time under the Seventh Circuit Court of Appeals decision. One has to wonder whether employees getting dressed in the morning in work clothes will ask for compensation for the time spent getting dressed. This will depend upon the outcome of this Supreme Court review. Employers may want to consider having a distinct procedure for employees putting on personal protective equipment used in the workplace to avoid this controversy. We may need to look at this further depending upon the Supreme Court decision.

Small Businesses can SHOP for Health Coverage Starting in 2014

Posted on March 11, 2013, Authored by Mary Ellen Schill, Filed under Employment

When I take my Affordable Care Act show on the road, usually my audience consists of human resources and benefits professionals who are looking for information they can take back to their workplace and the business owners. Last week I had the opportunity to meet with business owners directly when I gave a presentation on ACA to members of the Main Street Wausau business community. Almost all of the businesses represented have less than 50 full-time equivalent employees (FTEs), so they weren't there to listen to me ramble on about the pay or play mandate in 2014. What they did want to hear about (or maybe what I decided to talk about!) was what the marketplace for health coverage would look like in 2014 for a small business. Thankfully, I was able to talk about opportunities in 2014, rather than just obligations. The opportunities come from ACA's creation of the Small Business Health Options Program (or SHOP). For Wisconsin employers, SHOP will be part of the federally facilitated insurance exchange which will be up and running in 2014. Small employers (less than 100 FTEs) looking for health coverage for their employees can go to SHOP and do just that, shop. Employers can shop for a tier of coverage (from basic tier bronze to highest tier platinum) from which their full-time employees will be able to pick qualified health plans. Employees can then shop among the various qualified health plans offered within the tier selected by the employer. Unlike the current marketplace, the SHOP part of the exchange will allow small employers to bring to the health insurance market their full-time employees, but with more choices for those employees (a selection of many qualified health plans within the coverage tier), and without the sting of premiums being determined by the health status of only the employer's small group. Instead, premiums will be determined on a modified community-wide basis. Small employers are not required to contribute towards coverage through the SHOP, but they can do so if they desire. One nice feature of the SHOP (starting in 2015) is that the SHOP will aggregate all of the premiums required for the coverages selected by the employees, and then send one statement to the employer. The SHOP will also determine whether the employees are entitled to premium subsidies and offset those subsidies before sending the statement to the employer. So, even if your employees select coverage under different qualified group health plans and/or have premium credits coming from ACA, the SHOP will handle the financial accounting and send just one statement to the employer. As is often the case, the first year of the SHOP implementation (2014) means a slightly slimmed down version of the full program. For example, employers do not have to make available all qualified health plans within a coverage tier to their employees, instead they can select just one qualified health plan for 2014. Also, the premium aggregation feature (the SHOP aggregates all premiums due and sends the employer one statement) will not be offered until 2015. I can see the SHOP providing more opportunities to smaller employers including non-profits to actually offer group health plan coverage, without the small size of the employers workforce having such a big impact on the premiums.

Twelve Ruder Ware Attorneys Receive U.S. News & World Report's Best Lawyers Designation

Posted on March 25, 2013, Authored by ,

March 2013 - Ruder Ware is pleased to announce the following attorneys were recently selected by their peers for inclusion in The Best Lawyers in America(R) 2013 (Copyright 2012 by Woodward/White, Inc. of Aiken SC): David G. Anderson: Real Estate Law Mark J. Bradley: Trusts & Estates Linda M. Danielson: Trusts & Estates Dean R. Dietrich: Employment Law and Labor Law Sebastian J. Geraci: Tax Law and Trusts & Estates Jane E. Lokken: Elder Law Joseph M. Mella: Real Estate Law Mark D. Munson: Elder Law Randi L. Osberg: Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law Lon Roberts: Corporate Law and Mergers & Acquisitions Law Matthew D. Rowe: Corporate Law G. Lane Ware: Commercial Litigation and Corporate Law Russell W. Wilson: Commercial Litigation and Workers Compensation Law - Employers

The Scope of Prior Art in Patent Cases to Expand

Posted on March 4, 2013, Authored by Derek L. Prestin,

The Leahy-Smith American Invents Act (AIA) will be expanding the scope of prior art that may be considered by the Patent Office as part of the examination of a patent application on March 16, 2013. This change will result in significant changes to the consideration of prior art prior to filing a patent application and, in some cases, will make it much easier for an inventor to inadvertently forfeit the inventors ability to obtain a patent on their invention.   Under the changes to 35 U.S.C. 102 made by the AIA, a person will be entitled to a patent unless the claimed invention was: patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or described in a patent or in a published patent application, in which the patent or application, as the case may be, names another inventor and has an effective filing date that is prior to the effective filing date of the claimed invention.   These changes expand the prior art that may be considered by the Patent Office to include items in public use, on sale, or otherwise available to the public anywhere in the world (rather than just in the United States, as previously was the case) and extends the prior art effect of issued U.S. patents and published U.S. patent applications to their foreign priority date.   The AIA also adds an exception for certain disclosures, such that a disclosure made one year or less before the effective filing date of a claimed invention will not be considered prior art under 35 U.S.C. 102(a)(1) if the disclosure (a) was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor; or (b) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor. This exception creates a one year grace period for certain disclosures, similar to the one year period that was previously part of certain subsections of 35 U.S.C. 102.   However, it is important to note that under current case law the public use or sale of an invention is not considered a "disclosure" (instead they are termed either a "public use" or "sale"). Unless the courts change direction and hold that the public use or sale of an invention is now a "disclosure" under the provisions amended by the AIA, the one year exception added by the AIA does not appear to apply to any public use or sale of an invention.   Therefore, it appears that for patent applications filed on or after March 16, 2013, if an invention is in public use or is on sale at any time prior to a patent application being filed on the invention, such public use or offer for sale is likely to be considered prior art by the Patent Office and would prevent the inventor from obtaining a patent on their invention.   This represents a significant change from the current patent provisions, under which an inventor cannot obtain a patent on an invention that is in public use or on sale more than one year prior to the filing date of the patent application. In the past, this one year grace period has allowed inventors to begin commercialization of an invention to obtain the funds necessary to file a patent application. Due to the changes to the patent law by the AIA, this will no longer be an option, as it appears that any such public use or offer for sale would immediately disqualify an inventor from obtaining a patent on the invention if a patent application has not already been filed. Due to this change in the patent law, it is advisable that inventors take great care before allowing the public use of their invention or offering their invention for sale to any third party, as by doing so the inventor may forfeit any possibility of obtaining a patent on their invention. Where an inventor desires to preserve their ability to potentially obtain a patent, the inventor must file a patent application, whether an informal provisional patent application or the full non-provisional patent application, prior to any public use of their invention and prior to any offer of their invention for sale to any third party. In particular, the less formal and less expensive provisional patent application will likely become a much more important tool for inventors where the inventor has not yet decided whether to pursue a patent application but wants to allow the public use or sale of their invention. If you have questions regarding the above, please contact Derek Prestin, the author of this article, or any of the attorneys in the Business Transactions Practice Group of Ruder Ware.

Transition of Patent Procedure to First-to-File Coming Soon

Posted on March 1, 2013, Authored by Derek L. Prestin,

The Leahy-Smith American Invents Act (AIA) will be making a significant change to the process of obtaining a patent in the United States on March 16, 2013, when the United States patent system transitions from the long-standing first-to-invent system to a first-to-file system. This change will bring U.S. patent law into line with the patent laws of the majority of the rest of the world, but represents a significant change to U.S. patent law. Under the current first-to-invent system, if two or more patent applications are filed on the same invention, or inventions that are so similar that the Patent Office believes that a patent cannot be granted on both inventions, the Patent Office will hold an interference proceeding, or priority contest, between the applications. An interference proceeding is an administrative proceeding conducted by a panel of administrative patent judges that determines which of the inventors was the first to reduce the invention to practice, or which inventor first "invented" the invention. Under this system, the inventor that first reduced the invention to practice may obtain the patent on the invention. For any patent application filed on or after March 16, 2013, a first-to-file system will apply. Under a first-to-file system, the inventor that first reduces an invention to practice will not necessarily be able to obtain a patent on that invention and there will no longer be any interference proceeding. Instead, the inventor who first files a patent application with the Patent Office may obtain the patent on that invention. Any applications on the same invention filed by different parties after the effective filing date of this first patent application will be unable to obtain a patent, even if the later application is filed by an inventor who was first to reduce the invention to practice. That is, the date of reduction to practice is no longer relevant to which inventor will be allowed to attempt to obtain a patent on an invention. The only circumstance under which an inventor who was first to invent an invention ("Inventor A"), but filed a patent application on the invention after the filing of a patent application on the invention by another party ("Inventor B"), may still obtain the patent on the invention is where Inventor A can show that Inventor B derived the invention claimed Inventor B's patent application from Inventor A's original invention. This process will be called a derivation proceeding and, like the prior interference proceeding, will be an administrative proceeding in the Patent Office. However, to obtain a derivation proceeding, Inventor A must show (a) Inventor B's invention is the same or substantially the same and is not patentably distinct from Inventor A's invention; (b) the invention was derived from Inventor A; (c) the earlier application was filed without Inventor A's authorization; and (d) the construction of Inventor A's claims accurately reflects the true invention. These requirements will make a derivation proceeding somewhat difficult to obtain. Due to this change in the patent law, it is advisable that inventors apply for a patent earlier than under the prior first-to-invent system, as an inventor may forgo any possibility of obtaining a patent on the inventor's invention if another party files a patent application on the invention first. Please feel free to contact Derek Prestin, who prepared this article, or an attorney within the Business Transactions Practice Group of Ruder Ware if you need assistance or have any questions in regard to this article.