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Searching for Articles published in December 2013.
Found 12 Results.

Focus Team: Health Care

Posted on December 13, 2013, Authored by ,

Focus Team: School Districts

Posted on December 13, 2013, Authored by ,

Are Quickie Elections Coming in 2014?

Posted on December 16, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent action by the National Labor Relations Board (NLRB) has signaled that a new rule on "quickie" elections will be up for debate (and likely passage) in 2014. Several days ago, the NLRB voluntarily dismissed the appeal of a federal District Court decision which held that the Board's expedited representation election process was invalid because the Board lacked a quorum at the time that it issued the rule in December of 2011. This action was taken by the NLRB because it now has a full complement of members, and it is strongly anticipated that the Board will re-do the "quickie election" rule in early 2014 and re-issue such a rule for future union elections. Under the "quickie election" rule, there would be significant changes to the pre-election and post-election procedures used by the NLRB. Under the past version of the rule, there would be a limitation on the scope of a pre-election hearing used to determine whether or not there is a question concerning representation and also eliminated restrictions that required an election not take place sooner than 25 days after the date of a Direction of Election issued by the Board. Under the previously proposed rule, an election could be held within 10 days of a Direction of Election which will greatly impact the ability of an employer to conduct a campaign against the union organizing effort. The previously issued rule also provided an alternate procedure for elections to be conducted without a full determination of the eligibility of employees to be included in the election proceedings and gave broad discretion to hearing examiners to limit the amount of legal arguments and briefing that would be made in pre-election proceedings. Employers need to be aware of this anticipated new rule on "quickie elections." There may be little time for an employer to react to a union election petition if the new rule is adopted with similar limitations on the election timeline. Employers will have to be ever-vigilant to determine if there is a union organizing campaign undergoing in their facility and then be prepared to respond immediately to deliver the company message about the need to a union.

Arbitrate Your Employment Disputes?

Posted on December 17, 2013, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the 5th Circuit Court of Appeals overturned a ruling from the NLRB and held that an agreement between an employer and employee that provided for arbitration of any disputes (including class-action claims) was valid and did not violate the employees right to pursue collective action to complain about an issue in the workplace. This recent decision overturns decisions from the National Labor Relations Board that restricted an employer from using arbitration agreements as part of an employment contract with employees. This decision allows employers to use an arbitration clause in an employment agreement to address employment disputes, there was a partial victory for the NLRB in this Court of Appeals decision. The Court held that an arbitration provision in an employment contract must clearly state that the signing of the agreement does not eliminate the right of an employee to address certain employment issues by filing a claim with the National Labor Relations Board. Claims would include retaliation or termination for engaging in concerted activity which is protected conduct related to employees seeking representation from a union. While this decision gives back the opportunity for employers to enter into an employment agreement requiring arbitration of all types of disputes in the workplace; many employers are struggling with whether to use this tool as part of the employment relationship. Arbitration allows for an expedited procedure to determine a workplace dispute with an employee but also takes away some of the procedural protections that exist if a matter is tried in the courts. For example, sometimes the court procedures can stop a claim from proceeding to a hearing through summary judgment motions. Arbitration is a vehicle used in collective bargaining agreements with a great deal of frequency to resolve disputes between an employer and a union over interpretation of the language in the collective bargaining agreement. Using this process to resolve employment disputes does have some attractiveness because of the expedited process and the ability to pursue claims through this informal process rather than with the formality of a court proceeding. Employers need to assess whether this is something they want to use to control the cost of litigation and the process that will be followed to resolve employment disputes.

I Swear It Can Be Harassment: Workplace Profanity

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

A recent federal court lawsuit out of the State of Oregon serves as a great reminder that workplace profanity can be used as evidence to support a so-called "hostile work environment" harassment claim under certain circumstances. The case is Griffin v. City of Portland. In Griffin, the plaintiff/employee, who characterized herself as a "devout Christian," brought a religious-based hostile work environment claim against her employer based on her coworkers' repeated "use of God's and Jesus Christ's names as curse words" (the plaintiff characterized such language as profanity, which she found deeply offensive because of her religious beliefs). The plaintiff claimed that when she heard this type of religious profanity, she would often inform the speaker that this language offended her. On one particular occasion, the plaintiff sneezed, startling one of her coworkers who responded, "Jesus Christ!" The plaintiff commented to a different coworker that this language offended her and she was going to complain to management. Upon hearing this statement, the plaintiff's coworker commented, "I'm sick of your Christian attitude, your Christian [expletive] all over your desk, and your Christian [expletive] all over the place." This comment precipitated plaintiff's harassment complaint. Interestingly, in this case, the Court separated profanity into two distinct categories: (1) profanity that expressly implicates religious ideas, such as using God's name as a curse word; and (2) profanity that does not implicate religious ideas, such as simple expletives. Significantly, the Court concluded, "[a] rational jury could find that at least some of this profanity occurred because of [plaintiff's] religion [f]or instance plaintiff may be able to show that some of this profanity was uttered because of hostility to [plaintiff's] religious beliefs, and was subjectively and objectively unreasonable (from the perspective of a reasonable employee with [plaintiff's] fundamental characteristics)." Management personnel are, in my experience, often reluctant to address profanity in the workplace not wanting to be viewed as uptight "language police." This is especially true in work environments where simple expletives are common and are viewed as part of the workplace culture or identity. For those management personnel, the Griffin case is a powerful tool that may be used to persuasively curtail or eliminate workplace profanity. As Griffin illustrates, allowing profanity to continue in the face of communicated opposition (opposition that doesn't usually come to the attention of supervisory personnel) can have expensive consequences. If profanity could be interpreted by an employee as made because of that employee's protected classification (e.g., sex, race, religion, age, etc.) it becomes dangerous workplace language, even if to some it's a simple expletive.

Indefinite Leave As Reasonable Accommodation?

Posted on December 4, 2013, Authored by Dean R. Dietrich, Filed under Employment

Deciding what to do when an employee says she cannot return to work because of a medical condition, even after exhausting all FMLA leave, is one of the most difficult questions faced by an employer, especially in Wisconsin. I have written before about the need for a Wisconsin employer to consider the possibility of additional time off without pay as a reasonable accommodation for an employee suffering from a medical condition who has exhausted all FMLA leave available. I have always assumed, however, that an employer was not obligated to give indefinite leave to an employee because that would, almost per se, be considered an undue hardship for the employer. A recent decision from the highest state court in the State of New York has raised doubts about my conclusion. In a recent decision, the highest court in New York determined that the employer had to show that the accommodation requested by a bank executive, that he be allowed indefinite leave because he did not intend to "abandon his position," was an undue hardship for the bank. This means that there is no accommodation that may be automatically excluded from consideration even if the accommodation is a request for indefinite leave. While this is a New York State and City of New York decision based on their law, the past interpretations of the Wisconsin Fair Employment Act would certainly suggest a similar result could arise for a Wisconsin employer. The New York court refused to dismiss the case and eliminated a "bright line" rule that we all thought was effective that being that an indefinite leave of absence would not be required. The court said the employer must show (1) that the employee could not with any reasonable accommodation, satisfy the essential functions of the job or (2) that the requested accommodation of indefinite leave would result in an undue hardship on the company. This standard is similar to the analysis that a Wisconsin lawyer must make. The case has been sent back for further hearings so this is not a final answer to the questions of reasonable accommodation and indefinite leave of absence but it raises the specter that a Wisconsin employer will be required to analyze whether or not an indefinite leave is a reasonable accommodation that may be considered as part of the interactive process with the employee. A Wisconsin employer must determine whether an indefinite leave would create an undue hardship on the company. Remember, in Wisconsin, an employer may be obligated to transfer some of the essential functions of the job that the employee was performing at the time of the medical condition and request for leave. This decision does not mean the end to a reasonable accommodation analysis but it does suggest that indefinite leave could become a consideration by an employer, especially if the company continues to function very well without the employee doing her job. One might also question whether the company needs that employee if that is happening.

NLRB's New Top Attorney Threatens to Overturn Employer-Friendly E-Mail Decision

Posted on December 18, 2013, Authored by Ruder Ware Attorneys, Filed under Employment

Last week, the NLRB's (Board) newly-confirmed top lawyer, Richard Griffin, publicly commented that if given an opportunity (in other words, if the right case came along), he would attempt to overturn the employer-friendly, Bush-Era Board decision upholding an employer's right to prohibit employee use of company e-mail systems for union solicitation (as long as the policy itself, or enforcement of the policy, is not discriminatory). The employer-friendly, Bush-Era Board decision is Register Guard, 351 NLRB No. 70 (2007). Through the Register Guard decision, the Bush-Era Board established a new approach for analyzing whether certain restrictions will be deemed discriminatory for National Labor Relations Act (Act) purposes. The Bush-Era Board concluded that for a restriction to be impermissibly discriminatory, it must involve "the unequal treatment of equals" which means that unlawful discrimination consists of "disparate treatment of activities or communications of a similar character because of their union" protected status. Applying this new discrimination standard in Register Guard, the Bush-Era Board noted that "an employer clearly would violate the Act if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by anti-union employees but not by pro-union employees." The Board went on to state that "nothing within the Act prohibits an employer from drawing lines on a non-Section 7 basis [rights protected under the Act]." According to the Board, this means, "an employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g. Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and non-business-related use." The Board further clarified, "[i]n each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates" on the basis of rights protected by the Act (e.g., a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union). If Richard Griffin has his way, it's likely the Board will apply an "all-or-nothing-approach," such that if an employer permits its employees to use the company e-mail systems to advertise the personal sale of sports tickets or solicit employees to purchase products sold for school fundraisers, then it must also allow employees to communicate pro-union solicitations through the same e-mail systems. In other words, the "unequal treatment of equals" model of discrimination will be thrown out. Given Mr. Griffin's undeniable threat to overturn Register Guard, employers have good reason to be on guard. One current case that may present itself as the vehicle through which Mr. Griffin may (with the help of his cohort) overturn Register Guard is Roundy's Inc. the Board has already invited comments from interested parties about whether the Board should revisit the Register Guard decision. This development is worth watching, and employers are encouraged to closely scrutinize e-mail and media policies in anticipation of an unfavorable ruling.

2014 Standard Mileage Rates

Posted on December 6, 2013, Authored by Mary Ellen Schill,

The Internal Revenue Service has announced the optional standard mileage rates for computing the deductible cost of operating an automobile for business, medical, and moving expenses for 2014. Effective January 1, 2014, the optional standard mileage rates will decrease to 56 cents per mile for business transportation, and decrease to 23.5 cents per mile for travel relating to medical and moving transportation expenses. These mileage rates apply only to those expenses incurred or paid by a taxpayer on or after January 1, 2014 (and if reimbursed by an employer, reimbursed by the employer on and after that date). Expenses incurred prior to January 1, 2014 (whether reimbursed by the employer before or after that date) are still subject to the old 2013 rates (56.5 cents for business transportation, 24 cents for medical and moving transportation). The standard mileage rate for the deduction for charitable contributions remains unchanged from 2013 at 14 cents per mile. This change in mileage rates is relevant to employers that reimburse employees for business transportation based on mileage. While there is no legal requirement that employees be reimbursed at the IRS standard rate, many employers have a policy of doing so. As a reminder, any payments to an employee based on business travel at a rate in excess of the IRS standard rate generally is taxable income to the employee. For further information, please contact Attorney Mary Ellen Schill, who prepared this article, or any of the attorneys within the Employment, Benefits & Labor Relations Group of Ruder Ware.

Your Mileage May Vary - IRS Issues 2014 Mileage Rates

Posted on December 6, 2013, Authored by Mary Ellen Schill, Filed under Employment

This afternoon the IRS issued the standard mileage rates for determining the deductible cost for operating automobiles for various purposes (business, medical, charitable) for 2014. Specifics can be found here. Clearly the IRS has noticed the decline in the cost of gasoline at the pump, as the mileage rates for business and medical purposes have decreased slightly from 2013 (a half-cent decrease for business mileage to 56 cents per mile). The IRS's annual announcement of the standard mileage rate is a reminder that while employers are not required to reimburse employees for business travel expenses, many do, and when doing so any reimbursement above the IRS rate is taxable compensation. So, fill 'er up!

Happy New Year (?)

Posted on December 31, 2013, Authored by Dean R. Dietrich, Filed under Employment

This is the time of year that we say "thank you" and "best wishes" to all. On behalf of Ruder Ware, I want to thank all of our clients for the confidence they have shown in our representation. I also want to thank all of the human resource professionals who have spent the year working hard to ensure the success of their organizations and helping employees become productive and valuable to the company. Many things have happened this past year in Wisconsin that have been helpful to employers and future changes, like the unemployment compensation law changes, will also be helpful in 2014. This is also a time to look forward to the new year. I am afraid that the new year will bring many serious and difficult challenges for employers. Two of the most significant challenges will be the "quickie election" process and the "micro-union" bargaining unit interpretation. Both of these changes will make it easier for unions to organize all or a portion of a company workforce. The "quickie election" process will likely be re-proposed this spring and will make it far easier for a union to pursue a representation election and limit the time that a company will have to campaign against that union representation petition. Employers will need to be very vigilant about any type of union representation discussion in order to react quickly in what will be a very quick process. The "micro-union" recognition process will allow a union to petition for representation of a portion of the workforce without having to obtain a successful election amongst the entire company workforce. Petitions may be filed to allow for representation of employees in a particular department or a particular location with far more ease than currently allowed. The new General Counsel for the NLRB has indicated that he will re-issue the rules that will address the right of a union to pursue a limited bargaining unit amongst the entire workforce. This could allow for many small unions pursuing different wage and working-condition requests with the same employer. All of this means that human resource professionals and company officials need to be highly-attuned to what is happening in the workforce and the potential for union representation activities. It will be a challenging year as unions become empowered to pursue representation of employees with new vigor.

Unemployment Compensation Law Changes - Happy New Year?

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

Wisconsin employers will receive some relief from the employee-focused unemployment compensation law in Wisconsin after January 1. The Wisconsin Legislature has passed a new law which makes a number of changes to the unemployment compensation law affecting Wisconsin employers. A number of the changes relate to the definition of misconduct which will make it harder for employees to qualify for unemployment benefits if they engaged in inappropriate conduct in the workplace. One of my colleagues prepared a detailed article about the law changes that will take effect on January 1. Read the article in our Employment, Benefits & Labor Relations Newsletter. Wisconsin employers should become familiar with these changes to better understand how to protect their interests and avoid a claim for unemployment benefits from a terminated employee. We can hope that this does mean a Happy New Year for Wisconsin employers.

The Wisconsin Trust Code: Contemporary Trust Laws to Deal With Contemporary Trust Issues

Posted on December 16, 2013, Authored by ,

Wisconsin has never been considered a leading jurisdiction for the creation and administration of trusts. Thanks to years of volunteer work by some dedicated Wisconsin attorneys, that perception will change significantly on July 1, 2014, when the new Wisconsin Trust Code will go into effect and replace the current Chapter 701 of the Wisconsin statutes. Over the next few months we will provide a detailed analysis of the new law and suggest planning opportunities that will be available to clients. For now, here is a summary of some key provisions of the Wisconsin Trust Code (the "Code"). Revocable Trusts. Contrary to prior law, the new Code provides that a trust is revocable by the settlor (the person who created the trust) unless the trust instrument provides otherwise. Not only may a trust be revoked by the settlor, but also by a properly authorized agent, such as a guardian, if a settlor is incapacitated. Modification and Termination of Irrevocable Trusts. The Code makes it easier to modify or terminate an irrevocable trust. In general, an irrevocable trust may be modified or terminated without court involvement upon consent of the settlor and all beneficiaries. Without the settlor's consent, a court may modify or terminate an irrevocable trust if the modification or termination is not inconsistent with a material purpose of the trust, there has been a change in circumstances, or continuation of the trust would not be practical. The Code also permits a termination of an uneconomic trust which is a trust that is valued at less than $100,000. Decanting Trust Assets. Subject to certain restrictions that are designed to protect the interests of beneficiaries, the trustee of an irrevocable trust (the "first trust") may transfer trust assets to the trustee of another trust (the "second trust"), a procedure commonly referred to as "decanting." Trustees or beneficiaries might wish to decant the assets of an irrevocable trust to a second trust to (i) change the state law that governs the trust, (ii) change how and when beneficiaries receive distributions, or (iii) modernize an outdated trust document. Office of Trustee. The Code clarifies provisions in current law concerning the office of trustee and introduces new provisions that should foster more efficient trust administration. Some of those provisions deal with the acceptance or declination of a trusteeship, the rights and obligations of co-trustees, the appointment of successor trustees, the resignation of a trustee, the removal of a trustee, trustee compensation, and the reimbursement of trustee expenses. Duties and Powers of Trustees. The Code improves upon the prior statute governing the duties and powers of trustees. One significant addition to the Code governs the trustee's duty to periodically report to the beneficiaries and the trustee's duty to provide a trust accounting to certain beneficiaries when requested. The Code authorizes a trustee to delegate certain duties and powers to an agent but the trustee must (i) exercise reasonable care, skill, and caution when selecting an agent, (ii) establish the scope and terms of the delegation, and (iii) periodically reviewing the agent's actions. Duties and Powers of Directing Parties. The Code introduces a new concept to Wisconsin trust law by authorizing a settlor or a court to appoint "directing parties" who are granted powers to direct the trustee to make investment or distribution decisions. This allows a settlor to divide the traditional duties of a trustee and assign them to other parties. For example, a settlor could assign record keeping, tax return preparation and other administrative duties to a professional trustee. The settlor could then designate a directing party to be responsible for making trust investments and another party to be responsible for making distributions to beneficiaries or directing the trustee to make distributions. Unlike when a trustee delegates its duties to an agent (as described above), the trustee has no duty to monitor the directing party and is not liable for any resulting losses, unless the loss is a result of the trustee's willful misconduct. Duties and Powers of Trust Protectors. The Code introduces another new concept to Wisconsin trust law by authorizing the appointment of one or more trust protectors. A "trust protector" is a person who is granted certain powers over the trust, the trustee, or trust property. Trust protectors are often used to modify terms of the trust for various reasons such as a change in tax laws or changes in circumstances. A trustee has no duty to monitor the actions of a trust protector and, subject to certain exceptions, is not liable for taking actions consistent with the actions of the trust protector. Nonjudicial Settlement Agreements. The Code permits parties interested in a trust to enter into agreements concerning any matter involving the trust without having to take court action. Such an agreement, called a nonjudicial settlement agreement, becomes part of the terms of the trust. Creditors' Claims. Those looking for Wisconsin to join the ranks of states with strong asset protection trust laws will be disappointed. In general, the Code preserves current law related to spendthrift provisions in a trust document and the rights of creditors to make claims against a settlor's or beneficiary's interest in a trust. The Code also preserves current law that allows a trustee to limit the claims of a creditor of a settlor upon the settlor's death by providing or publishing notice to the creditors. The Code makes clear, however, that a beneficiary's use of real or tangible property owned by a trust does not subject the property to the claims of the beneficiary's creditors. Trustee Liability Under Life Insurance Trusts. The Code limits a trustee's normal duties with respect to trusts whose principal purpose is to hold a life insurance contract. In those cases, a trustee does not have a duty to determine whether the life insurance contract is, or remains, a proper investment. This change applies to all trusts executed after July 1, 2014 and to trusts executed before that date if the trustee provides a notice to certain beneficiaries. If you have questions about how the new Wisconsin Trust Code may affect you, please contact any of the attorneys in the Trusts & Estates Practice Group at Ruder Ware.