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Searching for Articles published in August 2013.
Found 25 Results.

Management Comments can Create a Smoking Gun for Discrimination Claims

Posted on August 7, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the U.S. Court of Appeals for the Sixth Circuit gives a prime example of how comments by an employer-representative can support a claim of discrimination. A sales manager in his late fifties showed a potential basis for a claim of age discrimination because of the comments made by a younger supervisor. The record of comments caused the Court of Appeals to reverse a lower court decision in favor of the Company and refer the matter back for a trial on the merits. The younger supervisor (in his thirties) made comments that the sales manager was "too old and too slow" and made "assumptions that younger people do not make." In addition, at about the same time, the sales manager was placed on a performance improvement plan that the employee was incapable of satisfying because of the nature of the conditions that were included in the plan. The Court of Appeals concluded that the proximity of these statements by the supervisor and the development of the impossible to satisfy improvement plan formed a basis to find a genuine issue of material fact that must be tried to the court. This is a prime example of how statements by a manager can create an impression or a context through which a reviewing court will question whether age (or other discriminatory factors) was the real justification for some type of adverse employment action being taken. Managers need to be aware of this potential for creating a "smoking gun" that can harm the Company. The Company must take steps to train managers so that they understand the consequences of their statements and avoid any actions that could be construed as showing discriminatory intent.

Partially Deaf Worker May Require Accommodation

Posted on August 2, 2013, Authored by Dean R. Dietrich, Filed under Employment

I wrote several blogs about potential areas of new disability claims relating to the use of caffeine and a new mental health disorder that may affect non-productive employees. A recent federal court case held that a partially deaf retail store pharmacy technician was entitled to file a disability claim when her employer placed the employee on indefinite leave because of difficulty in using the telephone at work. The employee suffered ear pain from a surgery on her "good" ear and could not effectively use the telephone because of the recent surgery and the pain caused when putting the phone to her ear. The employee was born deaf in one ear and suffered this limitation on the use of her other ear due to the surgery. The federal district court concluded that she suffered from an actual disability under the Americans with Disabilities Act Amendments even though each impairment on its own may not have substantially limited her ability to perform work. The court concluded that indefinite leave was not a reasonable accommodation when the employee was placed on leave of absence without pay because of her medical condition. The employee was able to show that she could handle telephone work even though she did not put the telephone directly on her ear, but the employer did not allow this accommodation to be used to allow her to continue to work. Employers must be careful not to move immediately to a leave of absence without pay if there is an accommodation that will allow an employee to perform their work duties without significant interference with the performance of those duties. This is especially true in Wisconsin where courts have held that the employer must do everything possible to allow an employee to continue to perform work, even to the point of assigning job tasks mainly performed by that employee to others to allow the employee to continue to work. Employers should take the time to consider possible accommodations and make a record if there are no accommodations that will allow the employee to be productive in the workplace.

Employee Requests for Accommodations for Non-Traditional Religious Observances - Practice What You PREACH

Posted on August 9, 2013, Authored by Ruder Ware Attorneys, Filed under Employment

Most employers are at least remotely familiar with the requirement under Title VII of the Civil Rights Act of 1964 to provide reasonable accommodations in response to employee requests to participate in religious observances or practices, if doing so does not cause demonstrable (not hypothetical or speculative) undue hardship to the employer's business operations. Recently, the federal U.S. Court of Appeals for the Seventh Circuit (which includes Wisconsin, Illinois and Indiana) evaluated whether an employer appropriately accommodated one of its employee's requests for several weeks of leave to travel to his native Nigeria to preside over his father's funeral ceremonies. The case is Adeyeye v. Heartland Sweeteners, LLC, Case No. 12-3820 (7th Cir. Jul. 31, 2013). In Adeyeye, primarily at issue was whether the employee provided sufficient notice to his employer about his religious observance and how it conflicted with a work requirement. In Adeyeye, the employee wrote the following requesting leave: I hereby request for five weeks leave in order to attend funeral ceremony of my father. This is very important for me to be there in order to participate in the funeral rite according to our custom and tradition. The ceremony usually cover from three to four weeks and is two weeks after the burial, there is certain rites that all of the children must participate. And after the third week, my mother will not come out until after one month when I have to be there to encourage her, and I have to kill five goats, then she can now come out. This is done compulsory for the children so that the death will not come or take away any of the children's life. I will appreciate if this request is approved. The Court noted that the employee's reference to a "funeral ceremony," a "funeral rite," animal sacrifice, "compulsory" participation and the adverse spiritual consequences of not attending the ceremonies, provided sufficient notice to the employer concerning a bona fide religious request. This is true, the Court noted, even though the employee's professed religious beliefs are "not as familiar as beliefs and practices closer to the modern American mainstream," because "the protections of Title VII are not limited to familiar religions." This case teaches that all religious requests, "even those that may to some, at first blush, seem "out there" (e.g., the Church of Body Modification), must be taken seriously." Faced with requests for an accommodation of non-traditional religious observances (or traditional observances), employers are encouraged to put "PREACH" into practice when evaluating such requests (as explained below): P Political, philosophical and mere personal preferences generally do not rise to the level of "religion" for Title VII purposes. R Religion is measured by one's personal "scheme of things," and whether a professed belief occupies a parallel to that filed by the orthodox belief in God. E Eliminate the conflict. Employers, after receiving notice of the religions belief and conflict with a work requirement, must attempt to identify accommodations that eliminate the conflict between the belief and work requirement. A Ask the employee to articulate one or more accommodations he or she thinks will eliminate the conflict between belief and work rule - this is the "interactive process." C Choose the appropriate accommodation - "employers are not required to accept the employee's preferred accommodation" only an accommodation that is "reasonable." H Hardship. Even if an accommodation is reasonable, it is not necessary if it causes an undue hardship (but hardship must be factual, not hypothetical).

Wisconsin Insurance Commissioner Announces Insurers Participating in Marketplace

Posted on August 7, 2013, Authored by Mary Ellen Schill, Filed under Employment

On August 6 the Wisconsin Office of Commissioner of Insurance released the names of the insurers who have applied to participate in Wisconsin's federally facilitated Exchange (the Wisconsin Marketplace). Thirteen insurers have applied to participate in the individual Marketplace (marketing qualified health plans to individuals only), while nine insurers have agreed to participate in the Small Business Health Option Program (SHOP), the part of the Marketplace which is available to small employers. Applying to participate in the Wisconsin Marketplace is just the first step for these insurers, because they must also undergo a federal review and sign a contract to participate. Insurers applying to take part in the individual Marketplace with their principal place of business are listed below. Common Ground Healthcare Cooperative (Brookfield) Compcare Health Services Insurance Corporation (Milwaukee) Dean Health Plan, Inc. (Madison) Group Health Cooperative of South Central Wisconsin (Madison) Gundersen Health Plan, Inc. (La Crosse) Health Tradition Health Plan (Onalaska) Medica Health Plans of Wisconsin (Minnetonka, MN) MercyCare HMO, Inc. (Janesville) Molina Healthcare of Wisconsin, Inc. (West Allis) Physicians Plus Insurance Corporation (Madison) Security Health Plan of Wisconsin, Inc. (Marshfield) Unity Health Plans Insurance Corp. (Sauk City) Arise (WPS Health Plan, Inc.) (Green Bay) Insurers which have asked to participate in the SHOP program, meaning that they have agreed to allow small employers (less than 100 FTEs) bring their full-time employees to the Marketplace as a group, are listed below. Note that some insurers are planning on participating in both the individual and small employer Marketplace. Common Ground Healthcare Cooperative (Brookfield) Group Health Cooperative of South Central Wisconsin (Madison) Gundersen Health Plan, Inc. (La Crosse) Health Tradition Health Plan (Onalaska) Medica Insurance Company (Minnetonka, MN) MercyCare HMO (Janesville) MercyCare Insurance Company (Janesville) Security Health Plan of Wisconsin, Inc. (Marshfield) Arise (WPS Health Plan, Inc.) (Green Bay) Notably absent are two insurers that are significant players in the Wisconsin group health plan market, UnitedHealthcare and Humana. The rates and coverage areas which these insurers are proposing have not yet been disclosed by Wisconsin's OCI.

WERC Sets CPI Limit for New Labor Agreements

Posted on August 2, 2013, Authored by ,

The WERC has calculated the CPI limit for new Labor Agreements being negotiated with public sector unions. The CPI limit on base wage negotiations for Labor Agreements that expire on June 30, 2013, is 2.07%. The CPI limit for base wage negotiations for Labor Agreements that expire on December 31, 2013, is 1.66%. These limits, of course, are subject to challenge in the case pending before the Wisconsin Supreme Court. We anticipate that oral arguments will be held in this case in late October or early November, and a final decision will be issued in February, 2014. The Supreme Court could uphold Wisconsin Act 10 as constitutional, declare the law unconstitutional or find that certain provisions of Wisconsin Act 10 are not constitutional and may not be implemented by municipal employers. During this interim time, public employers should continue to focus only on negotiating over the base wage increase from the prior year and apply the CPI limitation that has been determined consistent with the law. This is the most conservative approach in this time of great uncertainty. If you have questions regarding the above, please contact Dean Dietrich, the author of this article, or any of the attorneys on the Local Governments Focus Team, or the School Districts Focus Team of Ruder Ware.

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