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Searching for Articles published in January 2014.
Found 12 Results.

Interactive Process is a Must

Posted on January 28, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the Seventh Circuit Court of Appeals (which covers Wisconsin) again emphasized the absolute necessity that an employer engage in an interactive process with an employee claiming a disability before making any decision regarding accommodations or continued employment by the employee. In reviewing a lower court's decision to grant summary judgment in favor of the employer on a claim of disability discrimination by an employee suffering from narcolepsy, the Court of Appeals ruled against the employer and referred the matter to the trial court to assess the disability discrimination claim. The Court of Appeals did uphold the dismissal of an FMLA claim, because the employee did not provide proper medical documentation of a medical condition that warranted time off for medical leave purposes. In overturning the trial court judgment, the Court of Appeals found that the employer made a decision to terminate the employee before learning of her covered condition of narcolepsy because she repeatedly fell asleep in the workplace. The employer asked for medical information from the employee to explain why she continued to have difficulty staying awake but then decided to terminate the employee before reviewing the medical information which indicated the employee suffered from the sleeping disorder of narcolepsy. The Court of Appeals was very specific in finding the employer was aware of the medical condition but did not engage in any type of discussion with the employee about the medical condition and possible accommodations that would allow the employee to be successful in the workplace. This decision again emphasizes the absolute importance of engaging in an interactive process with an employee that is claiming a disability that requires some type of accommodation in the workplace. An employer is not bound to make an accommodation depending upon the specific facts but certainly must engage in a discussion with the employee before making any final decision about an accommodation request or even the existence of a disability that would warrant considering a possible accommodation. The failure to engage in an interactive process may not be an independent basis for liability but it is certainly a basis for a court to consider whether the employer has acted in a discriminatory manner.

Minnesota Joins Other States in Protecting Applicant Information

Posted on January 13, 2014, Authored by Dean R. Dietrich, Filed under Employment

As of January 1, 2014, employers in Minnesota may not ask an employee for information about their criminal background in the employment application process. This is known as "Ban-the-Box" law which has been passed in seven states, and similar laws are pending in 26 other states. The law prohibits employers from having a question on their employment application where the applicant would "check the box" and indicate their criminal background or conviction record history. Legislation of this type is not pending in Wisconsin but would apply to a Wisconsin employer that has a business in Minnesota and is hiring employees for that business. This type of legislation is one of several pieces of legislation that are being considered throughout the country relating to workplace privacy. Another example is the legislation that prohibits an employer from asking for the Facebook password of an employee or applicant to investigate information posted by the individual on Facebook. We can anticipate a number of changes in the area of workplace privacy and the expectation of privacy given to an employee. Much of this will change how the employer can investigate the actions of an employee or discipline an employee for things stated on a Facebook page or other social media conduit. Legislation at the state level and federal level will likely be debated throughout the course of this year that expands these employee privacy rights. Each employer should be careful and make sure they are in full compliance with restrictions that exist under these legislative enactments.

Hot Topics in Agricultural Law: Succession Planning

Posted on January 9, 2014, Authored by ,

Chet and Emil's Restaurant, 388 Main St, Birnamwood REGISTRATION Please call Jennifer Lau 715.803.1230. Succession planning is a topic that has been gaining significant interest amongst ag producers. This seminar will cover the topic from a few different perspectives and will address what this means for you and your farming operations. Attendees will have an opportunity to discuss succession planning, and questions related to it, with Ruder Ware attorneys and ag professionals. Follow this link for the seminar agenda.

Traveling to Work - New Employer Liability

Posted on January 6, 2014, Authored by Dean R. Dietrich, Filed under Employment

Employers understand they may be liable for employee injuries that arise while an employee is reporting to work, such as an automobile accident on the way to work or an injury when walking into the company premises from the parking lot. These potential areas of liability arise from the worker's compensation statute in the state of Wisconsin that provides generous benefits under circumstances where an employee is in the process of reporting for work. There are cases starting to develop on the West Coast (California) which suggests an employer may be liable for injuries caused by an employee to another person while the employee is traveling into work. These cases arise under the theory that the employer requires the employee to use her vehicle during work hours, therefore travel from home to work is connected to employment because of that requirement. Different jurisdictions in California are split on whether or not an automobile accident that occurs while an employee is driving into work would result in liability to the employer for injuries sustained by another person. Several cases are working their way through the California court system with different results so a final clarification of potential liability will happen in the near future. There is no clear ruling on this topic in the state of Wisconsin. Employers can be held liable for injuries an employee suffers while traveling to or from work under various theories in the worker's compensation arena but no clear ruling has found an employer liable for injuries caused by an employee coming to work who becomes involved in an automobile accident and injures another person. The connectedness to the company and the requirement that an employee have a vehicle at work to perform her duties is the linchpin to finding the employer responsible for the injuries suffered by another person but a case of that type has not been ruled upon in Wisconsin. It is another area of potential employer liability we must be concerned about. As we embark upon a new year, Ruder Ware will continue to blog about new developments in the field of employment and labor relations law. Happy new year to everyone.

Annual CWSHRM Human Resources & Labor Law Conference - 2014

Posted on January 8, 2014, Authored by ,

Holiday Inn South, 4751 Owen Ayres Court Eau Claire, WI Please contact Angela Mothes at:, or (715) 834.3425 Impact of U.S. v. Windsor and IRS Recognition of Same Sex Marriages on Wisconsin Employers Attorney Amy Ebeling Wisconsin does not recognize (and in fact criminalizes) same sex marriage. The United States Supreme Court in U.S. v. Windsor held that a portion of the federal Defense of Marriage Act was unconstitutional, but left stand the part of DOMA that says that states can refuse to recognize same sex marriages. The Internal Revenue Service now says that it will recognize same sex marriage for federal tax purposes, even if the taxpayer lives in a state that does not recognize same sex marriages. What does this all mean for Wisconsin employers and their employee benefit plans? This presentation will help you sort it all out. Benefits, Perquisites, Perks, Gifts, and Rewards - The IRS Doesn't Care What You Call It Attorney Amy Ebeling Are there doughnuts in the break room? Who bought lunch? Do employees receive holiday gifts? Are there rewards for meeting performance goals? Call it what you want, but any cash or property that an employee receives from an employer in lieu of or in addition to regular wages is a fringe benefit that may be subject to taxation. Attend this seminar to learn tips and tricks to determining tax treatment of fringe benefits, potential employer liability, and hot topic trends in fringe benefit taxation. What is Attorney-Client Privilege and Why Should I Care? Attorney Sara Ackermann Every day HR professionals draft e-mails, memos, disciplinary notices, termination letters, and countless other documents that could someday be "Exhibit A" in a discrimination law suit. Sara Ackermann will address the "do's" and "don'ts" of effectively and efficiently using legal counsel to minimize risk within your HR budget. Sara will cover the "how, when, and why" of using legal counsel in several areas, including, document drafting, conducting audits, and performing investigations. E-mail your best lawyer joke to Sara prior to her presentation - the attendee with the funniest submission will win a prize! Employees Gone Wild: How to Protect Your Company From Hidden Risks Ruder Ware Alumni Attorney In this hour-long session, we will provide helpful insight into several of the most-common HR headaches involving out-of-control or unusual employee conduct, including employee requests for accommodation of non-traditional religious practices/ observances, rogue employees who are out to steal the company's business, employees who are arrested or convicted, contractors who believe they are employees, employees who like to party a bit too much, workplace bullies and employees who like to broadcast their workplace grievances through social media. This presentation will educate attendees through reference to "real life" examples and easy-to-remember memory devices. Follow this link for a conference brochure and registration form.

"Can you hear me now?" Supreme Court May Provide Clarity on Cell Phone Searches

Posted on January 21, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

Last Friday, the Supreme Court decided to tackle an issue that may impact school districts. The Court will review a pair of cases about whether the police need a warrant to search the contents of a criminal suspect's cell phone. While school district administrators are held to a lower standard than police officers when searching a student's cell phone, reasonable suspicion versus probable cause, at least two courts have ruled against such searches. The standard of reasonable suspicion for searches of students and their belongings comes from the Supreme Court's landmark decision in New Jersey v. T.L.O., which states that searches of students not be "excessively intrusive" in light of the infraction. This provides school district administrators greater latitude than police in conducting searches. While some may argue that a search of a student's cell phone is not nearly as intrusive as other searches, courts across the country have found that these can violate student rights. Last year, a federal court ruled that a Kentucky school administrator's search of text messages on a student's personal phone violated the student's Fourth Amendment rights. It isn't guaranteed that the Court will directly address school district searches in its decision, but there is now another opportunity for the Court to provide input. Clear guidance from the Supreme Court may help school districts handle student discipline matters.

Light Duty Only for Work-Related Injuries  Pregnancy Discrimination?

Posted on January 22, 2014, Authored by Dean R. Dietrich, Filed under Employment

Many employers have adopted a light duty policy that only applies for an employee that suffers an on-the-job injury. The theory is to allow light duty for work-related injuries in order to encourage an injured employee to return to regular duty. Such a policy of only giving light duty to work-related injured employees has often been questioned as being discriminatory because light duty is not offered to a disabled employee who suffers from a condition that is not work related. For the most part, however, courts have upheld such a policy on the basis that the criteria used to determine eligibility for light duty is not discriminatory in nature. A recent decision from the Sixth Circuit Court of Appeals has raised a significant question about this analysis. In an unpublished decision, the Sixth Circuit Court of Appeals reversed a lower court decision that dismissed a claim against a nursing home by finding that the "no accommodation for non-work-related injuries" policy did raise a question of discrimination on the basis of pregnancy. The nursing home did not allow a light duty assignment for a pregnant employee because the condition was not a work-related injury. The Court of Appeals dismissed a claim based upon disability discrimination and an alleged violation of FMLA but ordered a claim of pregnancy discrimination to go back to the lower court for a trial. This decision raises a question whether the no accommodation for injuries that are not work related policy will continue to stand. Many courts have held that an employer can choose to only provide light duty (an accommodation) if the injury is work related but that thinking may be subject to change at least as it relates to the condition of pregnancy if an employee is able to perform their regular duties during the pregnancy. We will need to watch this case closely to see if employers need to adjust their thinking regarding light duty accommodations.

Reading and Early Childhood Development on WPR's Route 51

Posted on January 31, 2014, Authored by , Filed under Community

On Thursday, January 30th, Route 51 explored the importance of reading and early childhood development, both identified as urgent needs in the just released United Way LIFE Report (Local Indicators for Excellence), which details the strengths and challenges affecting quality of life in central Wisconsin. Host Glen Moberg moderated a discussion with Dean Dietrich, an attorney with the Ruder Ware law firm who is the chair of the Early Years Coalition of Marathon County; Julie Burmesch, a speech pathologist with the Wausau School District and vice-chair of the Early Years Coalition; and Sandy Ellis, a consultant on early childhood development and president of Prevention Solutions LLC of Junction City. The program will also feature an interview with Dr. Dipesh Navasaria, an assistant professor of pediatrics at the University of Wisconsin School of Medicine and Public Health and the keynote speaker at last weeks LIFE Report forum at UW Marathon County. Navasaria is a spokesman for Reach Out and Read, which makes literacy promotion a standard part of pediatric primary care. A link to the program can be found here: To learn more about the Marathon Countys Early Years Coalition, follow this link:   Pictured: (L-R) Julie Burmesch, Glen Moberg (host), Sandy Ellis, and Dean Dietrich

Asking Questions of a Disabled Applicant

Posted on January 8, 2014, Authored by Dean R. Dietrich, Filed under Employment

One of the most challenging situations faced by an employer is deciding whether or not to question an applicant about their condition when it is obvious the applicant suffers from some type of disabling condition (i.e. applicant arrives in a wheelchair or uses crutches). Employers are afraid to ask questions that could be used to support a claim that the company discriminated against the applicant because of the obvious medical condition. Sometimes, applicants self-identify they are suffering from some type of disabling condition without being asked and then the employer must decide whether or not to pursue questions to determine whether the applicant is qualified for the position. Whether or not an employer should ask questions of an applicant that displays obvious disabling conditions is challenging but really involves applying some common sense to the situation. An employer cannot ask what type of condition or what are the limitations caused by the condition but certainly can ask the applicant how they would be able to perform the identified duties and functions of the position. In other words, the employer can look to the job description and ask the applicant whether they have the ability to perform the tasks identified in the job description and even ask the applicant to demonstrate how they would perform the function with or without an accommodation. The employer representative should not ask what type of accommodation is needed unless the applicant indicates that an accommodation would be necessary to perform functions of the job. Applicants that suffer from an obvious disability or indicate they suffer from a disability are often looking to trap an employer into hiring the applicant either because of fear of discrimination or fear of asking questions about how the applicant would perform the job duties. Interviewers should be prepared with a list of questions in those instances where an applicant has an easily identifiable disability or is open about identifying a disability during the interview process. It is always important to have a job description that can be referred to, to get information from the applicant on how they would perform the duties of the position.

2014 Inflation Adjustments - You May Gift $14,000 Tax-Free (Grandma, are you reading this?)

Posted on January 2, 2014, Authored by Amy E. Ebeling, Filed under Tax Deductions

The Internal Revenue Service announced in October 2013 the annual inflation adjustments for a variety of tax provisions including tax rates, standard deductions, limitations for itemized deductions, and exclusion amounts. Fortunately for children and grandchildren alike, a taxpayer may gift $14,000.00 per year per person without paying any taxes. Accordingly, a married couple with three children could gift each child $28,000.00 thereby reducing their estate by $84,000.00 without paying a dime in tax. Tax-free gifting is a great way to reduce your estate to ensure it is below taxable thresholds upon your passing. Please contact your favorite Ruder Ware estate planning attorney to learn more about tax-free and tax-deferred estate planning techniques.

Clothing Optional? The US Supreme Court Rules Employers Need Not Pay Workers for Time Spent Putting On/Taking Off Protective Gear

Posted on January 27, 2014, Authored by Sara J. Ackermann,

Today the United States Supreme Court held that time spent "donning and doffing" protective clothing is not compensable under the Fair Labor Standards Act. In Sandifer v. United States Steel Corp, Sandifer and other steelworkers filed a putative collective action under the Fair Labor Standards Act (the Act), seeking back pay for time spent donning and doffing protective gear (a flame-retardant jacket, pair of pants, and hood; a hardhat; a snood; wristlets; work gloves; leggings; metatarsal boots; safety glasses; earplugs; and a respirator) that they assert the employer requires workers to wear because of hazards at its steel plants. The trial court granted the employer's motion for summary judgment in pertinent part, holding that the workers' donning and doffing constituted changing clothes under the Act, Section 203(o). The trial court also assumed that any time spent donning and doffing items that were not "clothes" was de minimis and not compensable. The 7th Circuit affirmed. The U.S. Supreme Court affirmed, holding that the time the workers spend donning and doffing their protective gear is not compensable by operation of Section 203(o) because the workers' donning and doffing of protective gear qualifies as "changing clothes" within the meaning of Section 203(o) under the Act. 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. Note: The Sandifer decision is very narrow. Section 203(o) of the Act referenced in this e-alert provides an exception for time spent changing clothes at the beginning and end of the workday if expressly excluded by the terms of, or custom or practice under, a collective bargaining agreement. The Sandifer decision does not address a non-union employer's obligation to pay employees for donning and doffing clothing and/or protective gear.

Electronic Health Records Donation - Final Rules Issued by Centers for Medicare & Medicaid Services and Office of Inspector General

Posted on January 2, 2014, Authored by John H. Fisher, II, Mary Ellen Schill,

Just before the current rule was due to expire, the Centers for Medicare & Medicaid Services (CMS) on December 27, 2013 released final regulations on donation of electronic health record software. The existing rule, which was set to expire on December 31, 2013, allowed hospitals and other providers of Stark Law "designated health services" to make donations of electronic health records software that meets certain requirements, to physicians and physician groups. A parallel rule was released by the Office of Inspector General (OIG) addressing the Anti-Kickback issues presented by donation arrangements.   Since 2006, there has been an exception to the Stark Law protecting certain arrangements involving interoperable electronic health records software or information technology and training services (the "Donation Exception"). The Donation Exception provides an exception from the physician self referral laws for certain arrangements involving interoperable electronic health records software or information technology and training services. Absent such an exception, the value of qualifying technology donated by a hospital or other provider of "designated health services" would create a compensation arrangement that would trigger a violation of the Stark Law.   The Donation Exception final rule adopts most of the changes that were proposed in draft rules released in April 2013. For example, the rule extends the expiration date of the EHR donation exception from December 31, 2013 to December 31, 2021. The final rule also removes the previous requirement that qualifying software contain electronic prescribing capacity. In response to commenters on the April 2013 proposed regulations, clinical laboratory companies are now excluded from the ability to offer EHR donations under the Donation Exception. Lastly, the final rule also clarifies some issues regarding restrictions on the use, compatibility, and/or interoperability of donated items. The following summarizes the primary changes that were made in the final regulations:   Extension of the Stark Law Exception The Stark Law exception was scheduled to expire on December 31, 2013. As a result of the built in expiration date, most donation agreements were set to expire at the end of 2013. The exception has now been extended through December 31, 2021; a change that was expected based on the previous draft released April 2013.   Clarification of Interoperability and Certification Requirements In order to qualify for the Donation Exception, the applicable software must be certified as being "interoperable." The previous exception left some ambiguity regarding the relationship between the cycle upon which the software receives certification and the date the software is provided to the physician. The final regulations clarify that the appropriate inquiry is whether the software is as interoperable as feasible given the prevailing state of technology at the time items or services are provided to the physician recipient. This change was expected based on the previously released proposed regulations and changes in certification cycles that took place since the rules were first adopted in 2006.   Exclusion of Clinical Laboratories The original Donation Exception promulgated in 2006 permitted any designated health service provider to offer an electronic health records donation program. This included hospitals, durable medical equipment providers, clinical laboratories, and providers of all other goods and services categorized as "designated health services" under the Stark Law. The final regulations exclude clinical laboratory companies as approved providers of electronic health record donations beginning March 27, 2014.   Through the years, the OIG has expressed concerns about the potential for abuse of the exception by certain types of providers and suppliers, such as laboratories and other ancillary service providers to abuse the Donation Exception and comparable Anti-Kickback Statute provisions. CMS' proposed rule revision in April of 2013 sought input from the provider community regarding possible exclusion of certain types of providers from being able to take advantage of the Stark Laws Donation Exception.   CMS received responses that indicated potential for fraud relating to donations of electronic health records items and services by laboratory companies. Some of these comments strongly urged the elimination of protection for donations made by clinical laboratories. Based on these comments, CMS concluded that donations of electronic health records items and services by laboratory companies present a high risk of fraud and abuse. To that end, the final regulations exclude laboratory companies from the types of entities that may donate electronic health records items and services under the Donation Exception.   CMS did not exclude durable medical equipment providers or any other providers of the Stark Law "designated health services" from being able to offer qualifying electronic health information donations under the Donation Exception. CMS based its decision not to exclude other types of providers on the failure of industry comments to provide specific examples of abusive practices involving donation programs offered by these providers. CMS stressed that it is the behavior of laboratory companies and physician recipients of donations from laboratory companies that caused CMS to exclude clinical laboratory companies as possible donors.   CMS does not preclude the possibility that it might consider excluding other provider types in the future based on specific examples of abuse. Rather, CMS indicates that it would be premature to exclude potential donors when CMS has not heard of specific concerns about categories of donors or types of donation arrangements other than clinical laboratory providers.   Electronic Prescribing Capabilities The original electronic health records Donation Exception required donated software to include an electronic prescribing capability, either through an electronic prescribing component or the ability to interface with the physician's existing electronic prescribing system. The requirement in the original rules was symbolic of the government's view that electronic prescribing was of critical importance.   The electronic prescribing requirement for donated information systems has been removed from the newly issued regulations. Deleting the electronic prescribing requirement is reflective of the fact that other incentives have solidified electronic prescribing as a standard part of information systems. As such, CMS' view is that the requirement is no longer a necessary condition for receiving the benefit of the electronic health record donation exception.   Data Lock-In Arrangements CMS addressed concerns regarding potential data lock-in arrangements. One possible "data lock-in" arrangement addressed by CMS involves donors charging fees to providers to permit them to interface with the donated software. As a practical matter, this type of arrangement defeats the "interoperability" requirements under the donation rules.   Additionally, data-lock situations can occur when external software has difficulty accessing data in the donated system or there is difficulty populating external software with data from the donated system. The limited accessibility of the data makes it harder for the physician recipient to access and use it for clinical purposes and makes it more likely that a physician will only use the donor's service to assure data accessibility.   CMS failed to create any specific additional requirements to address potential data-lock situations. CMS points out that any arrangement that creating limited or restricted interoperability due to action taken by the donor would fail to satisfy the donation rules. Apparently, CMS felt that existing regulatory requirements adequately prohibit possible data-lock situations.   Conclusion Based on the revised rule, donors are now permitted to extend donation agreements through the end of 2021. Clinical laboratory companies have until March 27, 2014 to discontinue their donation arrangements. This gives physicians who have existing donation relationships with clinical laboratory companies a limited window to secure an alternative donation arrangement. While this summarizes the main changes, anyone involved in donation programs should review the regulatory comments to gain a better understanding of donation program aspects causing regulatory concerns. If you have questions regarding this article, please contact one of the authors, John Fisher, or Mary Ellen Schill.