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Searching for Articles published in June 2013.
Found 9 Results.

Walk-Off Home Run Beats Employer in the Bottom of the Ninth

Posted on June 20, 2013, Authored by Kevin J.T. Terry, Filed under Employment

All sports fans know that in baseball, it is a critical advantage to be the home team. This is because the home team bats last in the ninth inning and has the last crack at hitting the game winning home run. A recent case in New York (Allen v. Chanel, Inc.) illustrated why it is just as important to for an employer to be the "home" team when dealing with separation agreements and the signing of a release of claims. For those that are confused, let me explain. A samples coordinator for Chanel's fashion division alleged that she was wrongfully terminated after reporting multiple instances of discrimination. At the time of her discharge, Chanel presented to her a "Separation and Release Agreement" that included a "General Release of Claims" that stated the employee released her claims against the company "including, but not limited to, claims of discrimination and harassment" among others. Chanel management, in the top of the ninth inning, signed the document and sent it to the employee, like a fastball down the heart of the plate, for her signature. Five months later, the Chanel employee brought her discrimination claim. Chanel moved to dismiss the claim and pointed to the "General Release of Claims" for support. The court found for the employee and stated she "manifested an intent to preserve her right to file a discrimination claim." How did she do that?! After Chanel management released their pitch, the employee had the last crack at the document. The employee signed the pre-signed agreement that Chanel sent, but not until after she re-typed the page with the general lease of claims. She used the same font, margins, and style, but changed the first two letters of the word "including" to read "excluding." The release now excluded claims of discrimination and harassment. The employee, and the home team, wins in the bottom of the ninth! This story, and poor attempt at an analogy, can serve as a reminder to employers. Never pre-sign a Separation Agreement. Retain control of the document so that there is no dispute about what the parties are agreeing to. When you have the chance, always choose to bat last in these types of disputes.

Is Coffee My Friend or My Foe?

Posted on June 11, 2013, Authored by Dean R. Dietrich, Filed under Employment

As a labor negotiator, I rely upon coffee to help me through the long days and long evenings that often occur when negotiating a new labor agreement. I have come to hold coffee in highest esteem as my best friend. I recently read that coffee may deter the chemicals that are responsible for memory loss although the tests have only been taken on the brains of mice and not men. Let's hope that coffee has the same impact on the human brain; I may offer my brain as a test subject based upon the amount of coffee I consume every day! I have also recently learned that coffee may become a "foe." The newest edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Medical Disorders (DSM-5) recently was issued and "caffeine withdrawal" has been identified as a new medical disorder. The symptoms of caffeine withdrawal are fatigue, headache, and difficulty focusing. I can see an individual who is not performing well in his position now argue that he has difficulty focusing because he suffers from caffeine withdrawal. This would apparently occur if an individual is used to caffeine in coffee as a mild stimulant but suffers withdrawal from the inability to get caffeine through coffee and suffers in work, sleep and whatever they need to do. By being recognized as its own mental disorder, an argument could be made that an individual suffers from a disability created by the notion of caffeine withdrawal. Wisconsin employers may also be subject to an additional claim if they take discipline against an employee that is having trouble focusing on their job duties because the use of coffee would be considered a lawful product and thereby protected under the use of lawful products protection in the Wisconsin Fair Employment Act. It is too early to tell whether this will become a new defense for employees who are being considered for discharge from employment but maybe we should all carefully measure how much coffee we drink each day in order to determine whether or not we will have either the positive effects or the negative effects of coffee.

Is the NLRB Alive? Supreme Court Will Decide

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

On Monday, the United State Supreme Court granted certiorari (meaning they have agreed to hear a case) on whether the appointments by President Obama in January 2012 to the National Labor Relations Board (NLRB) are valid appointments or improper application of the "between" session presidential appointment process. President Obama appointed two members to the NLRB because court rulings held that the NLRB and its decisions were not valid without a majority of the Board (meaning three of the five members) being properly appointed to serve. The appointments were done on an emergency basis allegedly between two sessions of Congress but lower courts have ruled that the appointments were not valid because Congress was not properly between sessions when the appointments were made. The United States Supreme Court in Noel Canning v. NLRB, has agreed to accept the case on appeal to determine whether or not the appointments by President Obama were valid. Everyone agreed that the United States Supreme Court should hear this case to get a final decision on the presidential appointments and the authority of the NLRB. While we will not get a decision until next spring, we will at least have a final decision at some point in time whether the myriad of NLRB decisions issued over the past twelve-eighteen months are valid decisions and enforceable against the company. Stay tuned for more developments.

Sorting Out the Federal Health Insurance Marketplace - Forum Provides Answers (and More Questions!)

Posted on June 17, 2013, Authored by Mary Ellen Schill, Filed under Employment

On Thursday evening June 13, I had the pleasure of participating in a public forum sponsored by the Wisconsin Institute for Public Policy and Service entitled, "Preparing for the Federal Health Insurance Marketplace: A View from Wisconsin." As one of three panelists, I was asked to talk about how employers large and small are preparing for the Marketplace (also known as the Exchanges). I found the composition of the audience to be varied, young and old, business owners, employees, and retirees. It seems that everyone has a lot of questions about the Marketplace, and those of us on the panel did what we could to answer those questions. As attorneys oftentimes we feel as though "we'll have to wait and see" isn't necessarily a helpful response to a client's question, but in the case of the Marketplace there really are still a lot of unknowns.

Disabled Employee Must be Considered for Vacant Position

Posted on June 5, 2013, Authored by Dean R. Dietrich, Filed under Employment

Recent action by the United States Supreme Court has clarified the duty of accommodation that an employer must make under the Americans with Disabilities Act. The action of the U.S. Supreme Court was to deny review of a 7th Circuit Court of Appeals decision involving United Airlines. The 7th Circuit Court of Appeals decision held that a "reasonable accommodation" under the ADA would likely require an employer to provide an employee with a disability the "reassignment to a vacant position" as accommodation if the employee is unable to perform the duties of their regular position. This requirement would apply even if there were other qualified candidates for the position. By denying the appeal, the United States Supreme Court has allowed the 7th Circuit decision to stand. As a result, employers must consider and give a vacant position to an employee with a disability provided the employee can perform the essential functions of that vacant position with or without a reasonable accommodation. This decision may not change the analysis done by a Wisconsin employer when considering whether or not to provide an accommodation to a disabled employee. The Wisconsin Supreme Court has been very generous in requiring employers to make many types of accommodations to an employee with a disability. One accommodation that likely must take place is to give a vacant position to the disabled employee without competing for the position if the employee is able to perform the essential functions of that vacant position. This would arguably not create an undue hardship for an employer. Employers should be careful to consider what vacant positions exist if an employee is considered disabled and unable to perform the essential functions of their then current position. Employers must do a thorough analysis to determine if the disabled employee is able to perform the duties of the vacant position. An employer may be subject to a disability claim if that vacant position is not granted to the disabled employee unless legitimate reasons exist for not making that assignment; a legitimate reason would not be a more qualified candidate is available to fill the vacant position.

What's the Frequency Kenneth: How Often May Employers Solicit Updates from Employees on FMLA Leave?

Posted on June 3, 2013, Authored by Ruder Ware Attorneys, Filed under Employment

Recently, while paging through a set of "boilerplate," employer FMLA notification forms, I noticed a field/blank for employers to insert how frequently an employee seeking FMLA leave is to provide updates concerning return-to-work status. Believe it or not, my very next thought was about Dan Rathers' 1986 mugging and the R.E.M. song Rathers' mugging later inspired (strange, yes, but everyone needs a good muse). Anyway, after I regrouped (which happened to be approximately four minutes later), I remembered a case from about two years ago that addressed whether an employer's weekly telephone calls to an employee on FMLA leave constitutes "interference" with an employee's exercise of his/her rights under the FMLA. In that case [for anyone who is interested, the case is called Terwilliger v. Howard Memorial Hospital, 770 F.Supp.2d 980 (W.D. Ark. 2011)] the court correctly noted that "interference" with an employee's FMLA rights "includes discouraging an employee from using FMLA leave." (see 29 C.F.R. 825.220(b)). Interestingly, the Court concluded that a supervisor's weekly, status-report telephone calls to an employee on FMLA leave [including an alleged comment that the employee "should return to work as soon as she could"] supported a triable interference claim based on a chilling theory - the idea that the supervisor's weekly telephone calls pressured the employee to use less than her full rights under the FMLA. This is an interesting case, no doubt, but it doesn't tell the whole story, as explained below. Although employers should always be cautious in terms of the frequency of contact with employees on FMLA leave, it is important to note that the federal regulations, specifically, 29 C.F.R. 825.311(a), instructs, "[a]n employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work." This regulatory reality appears to have gone undetected in the Terwilliger case [or perhaps it wasn't raised by the attorneys involved in the case]. However, an employer's ability to solicit periodic status reports is an important point to remember - "according to the regulations, periodic reports are not the end of the world as we know it "even for purposes of the FMLA.

Attorney Stewart L. Etten Elected President of Ruder Ware

Posted on June 25, 2013, Authored by ,

Ruder Ware is pleased to announce the election of Stewart Etten as its president. Etten becomes the fifth president in the firm's 93-year history succeeding Mark Bradley who will continue to serve on the firm's Board of Directors and practice law. Etten is a member of the firm's Business Transactions Practice Group and serves on its Board of Directors. For the past six months, he has worked alongside Bradley and Jamie Schaefer, Chief Operating Officer, to ensure a smooth transition of leadership. In making the announcement, Bradley cited Etten's executive experience and commitment to client service. "Stew has been a valued member of our firm's leadership and is ready to assume the role of president. He has the respect of his colleagues and clients. He is known for his unwavering commitment to the highest levels of client service and will continue to emphasize that as a distinguishing characteristic of our firm." Etten has been associated with Ruder Ware for almost 33 years. During his career he also served as in-house counsel for a $1 billion bank. He practices in the areas of banking, commercial law, creditors' rights, and mergers and acquisitions. An active community member, Etten recently served on the board of the Community Foundation of North Central Wisconsin.

How the DOMA Decision Affects Employee Benefit Plan Sponsors

Posted on June 26, 2013, Authored by Mary Ellen Schill, Filed under Employment

This morning, in a 5-4 decision, the United States Supreme Court ruled in United States v. Windsor that the federal Defense of Marriage Act (DOMA) is unconstitutional. On equal protection grounds, the Court held that if a state has recognized same sex marriages, then the federal government must honor those marriages with respect to federal benefits such as social security. The impact on benefit plan sponsors might not be immediately apparent, because many may be of the belief that for federal tax and benefit purposes, the federal statute defines who a spouse is. However, both the federal tax code and Social Security laws have long provided that for purposes of those federal benefits, whether an individual is a "spouse" depends on state law. This is why DOMA was so significant upon enactment, it in effect said that notwithstanding how a state decides to define marriage, the federal government was not going to recognize any state's marriage law to the extent it legalized same sex marriage for purposes of any federal benefits. Today's decision does not require states to recognize same sex marriages. But what it does say is that if a state does decide to recognize them, then the federal government must consider those marriages to be valid for purposes of all federal laws and benefits for which the definition of spouse is a creature of state law. Social Security benefits are a prime example. Federal tax laws are another. Even ERISA is implicated. Qualified retirement plans are required under ERISA to provide spousal protections which would now be available to same sex spouses in states where same sex marriage is recognized. For example, if a 401(k) plan participant is legally married to a same sex spouse under the state law where the employee resides, then the spouse has the right to be the beneficiary of the employee's account unless the spouse consents to another beneficiary designation. Health coverage provided to a same sex spouse would also be nontaxable (again, only if the couple resides in a state which recognizes their marriage). Wisconsin does not recognize same sex marriage. Today's decision does not require it to do so. But Wisconsin employers still must consider whether they have employees who are legally married to same sex spouses where the marriage must now be recognized for purposes of employee benefit plans.

Supreme Court Hands Employers Victory: Court Adopts Narrow Definition of "Supervisor" in Sex Harassment Cases

Posted on June 25, 2013, Authored by Ruder Ware Attorneys, Filed under Employment

Yesterday, the Supreme Court of the United States issued its long-awaited opinion in the Vance v. Ball State case (find a copy of the opinion here). The Court established the proper definition of "supervisor" under Title VII of the Civil Rights Act of 1964 (which governs, among other things, sexual harassment under federal law). The Court espoused the Seventh Circuit approach (the Seventh Circuit includes Wisconsin, Illinois and Indiana), which narrowly defined the term "supervisor" to include only those personnel who are vested with authority to take so-called tangible employment actions (e.g., have authority to fire, demote, make certain salary adjustments, etc.). Through the Vance v. Ball State opinion, the Court rejected an alternative definition of "supervisor" adopted by other federal courts, which more broadly defined the term "supervisor" to include personnel who lack authority to take tangible employment actions, but merely have authority to direct daily work activities. The Court's decision is significant because for purposes of Title VII, whether a "supervisor" is the alleged harasser makes a big difference if a "supervisor's" harassment results in a tangible employment action, the employer is strictly liable for the harassment. However, if a mere co-worker is responsible for the harassment, the employer is liable only if it is negligent in addressing the harassment.