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Searching for Articles published in February 2014.
Found 13 Results.

Eau Claire Ruder Ware Employment, Benefits & Labor Relations Conference - 2015

Posted on February 4, 2014, Authored by ,

Conference Schedule: Welcome and Introductions: 8:00 a.m. 8:05 a.m. - 9:20 a.m. Affordable Care Act New Reporting Requirements and Update  Attorney Mary Ellen Schill The pay or play mandate under the ACA is here for applicable large employers. And, the IRS has issued draft forms and instructions for the Section 6055 and 6056 reporting requirements for ALEs, insurers, and self-funded health plan sponsors.  Attorney Mary Ellen Schill will get you up to date with the ACA and the new reporting requirements. Break: 9:20 a.m. - 9:30 a.m. 9:30 a.m. - 10:40 a.m.  Morning Workshops, Round 1 (Choose One) NLRB on the Loose:  Do Your Personnel Policies Pass Muster Under Recent Board Decisions? Attorneys Dean Dietrich The National Labor Relations Board has a full complement of Board members and is engaging in a great deal of scrutiny over employer personnel policies and codes of conduct.  A number of decisions by the Board have held that various types of employer policies designed to address employee conduct violate the protected speech rights of employees under Section 7 of the National Labor Relations Act.  This presentation will review the Section 7 Rights of employees and identify the various personnel policies that may be subject to further scrutiny by the NLRB.  Social Media as a Tool in the Hiring Process Attorney Kevin Terry What is the first thing recruiters do when they receive an application? For many, it is to Google the applicant's name to get additional information about the person. Using tools like Google, LinkedIn, Facebook, and even Twitter is becoming commonplace in the search for employees. With these new tools, however, comes risks and rewards. The presenter will address the "Do's and Don'ts" of using social media in the hiring process. Break: 10:40 a.m. - 10:50 a.m. 10:50 a.m. - Noon  Morning Workshops, Round 2 (Choose One) Now I Have a Migraine!  How to Manage the Sick, Injured, and Disabled Workforce Attorney Sara Ackermann This session will cover the evolving world of the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA). This session will address the statutory requirements of each law; examine some of the common management difficulties that are encountered, and suggest practical ways to address these concerns. Attorney Ackermann will address all of your questions including the following: When is each law triggered? What if more than one law applies? How can medical information be obtained? When can attendance issues be addressed? And, the million dollar question, when can employment be terminated? Union Rights for Non-union Employees Ruder Ware Alumni Attorney Labor laws are not just for unionized employers!  In this hour-long, interactive session, attendees will learn about numerous, recent developments at the National Labor Relations Board level that impact non-union workplaces.  These developments include the so-called "ambush" or "quickie" election rules, micro-unit organizing rights, workplace confidentiality protections [policies and unwritten directives], solicitation and distribution practices, employee access rights, employee use of company e-mail systems, Weingarten rights [whether an employee is entitled to representation at a disciplinary meeting], representation rights at OSHA inspections, so-called "inherently concerted activity," and more.   The NLRB is flexing its muscles-find out what you need to know to be prepared. Noon - 1:00 p.m.   Lunch and Networking - bring your hypothetical questions and try to stump the experts! Holiday Inn South 4751 Owen Ayres Ct Eau Claire, WI

What Now? Is a Temporary Impairment Now Considered a Disability?

Posted on February 5, 2014, Authored by Dean R. Dietrich, Filed under Employment

Employers have always been told that an employee that suffers a temporary impairment or injury does not qualify as a disabled employee under the Americans with Disabilities Act. For example, an employee falling out of a deer stand and breaking his leg would not be considered disabled for purposes of an accommodation requirement under the Americans with Disabilities Act or the Wisconsin Fair Employment Act. Recent amendments to the ADA (known as the Americans with Disabilities Act Amendments Act of 2008) and a Fourth Circuit Court of Appeals decision may now suggest that a different answer applies. In a Fourth Circuit Court of Appeals decision issued on January 23, the Court stated that "a sufficiently severe temporary impairment may constitute a disability." This case involves an employee that travelled to the client of his employer while serving as an analyst conducting research and writing reports for that client. The employee suffered a serious injury when stepping off a commuter train on his way to work resulting in two surgeries on his leg. The employee was prohibited from putting any weight on his leg for six weeks, and it was estimated that it would be seven months before he could walk on his leg normally again. While the employee was hospitalized, the employee suggested that he receive short-term disability benefits and work from home during his recovery and even begin to work full-time from home until he was fully recovered. This request was never responded to by the employer nor did the employer suggest any type of alternative accommodation. Instead, the employer terminated the employee within a month after the injury occurred. This case is important for two reasons. First, the employer did not engage in an interactive process with the employee regarding the potential for accommodation which may have tainted the Court's view of whether a disability existed (see recent blog about the interactive process). More importantly, the Fourth Circuit Court of Appeals held that the 2008 Amendments to the ADA were designed to limit challenges to whether a disability existed and even noted that the EEOC regulations identified a disability to include such temporary things as a significant lifting restriction lasting several months. In other words, the Court of Appeals held that the temporary condition that this employee suffered from may be significant enough to warrant it being considered a disability even though it would only last for several months. The Court refused to uphold the summary judgment motion granted to the employer and instead referred the matter back to the trial court to determine if the employee suffered from a disability and whether the employer was required to provide an accommodation for that disability. The ruling in this case highlights the constant need by employers to look at the facts and circumstances surrounding an employee's claim of disability and request for an accommodation. Employers cannot just say that it is a temporary condition and therefore does not constitute a disability under the applicable state or federal law. Employers will need to take more time to assess and understand the medical condition being experienced by the employee and then determine whether or not the condition would constitute a disability and require some sort of accommodation.

Special Local Government Seminar

Posted on February 10, 2014, Authored by ,

Great Dane Pub & Brewing Co., Wausau, WI To register please contact Shannon Nest at: snest@ruderware.com or (715) 845-4336. IMPORTANT: The IRS has issued final regulations on implementation of the Affordable Care Act. Come to the seminar to learn how these final regulations affect your compliance with ACA. This Special Local Government Seminar will focus on the following topics: Local Government Issues under the Affordable Care Act. This presentation will focus on local government issues that arise under the Affordable Care Act such as whether to count volunteer firefighters/EMTs as employees of the municipality and how to count salaried employees that work less than 40 hours. New regulations also discuss who qualifies as a volunteer and postpones compliance requirements for employers between 50 and 99 employees. Privacy Issues in Local Government Setting. This presentation will focus on privacy issues that are arising in the local government setting and discuss the impact of recent legislation and court decision on the ability of a local government to regulate the speech and conduct of public sector employees. In addition, Ruder Ware will address any ruling from the Wisconsin Supreme Court regarding Wisconsin Act 10 if a ruling is issued by the time of the Seminar. We anticipate the Wisconsin Supreme Court will render a decision on the constitutionality of Wisconsin Act 10 in the near future but are not sure that it will be finalized by the February date. Everyone is encouraged to attend this Special Seminar. It is important for local government officials to understand their obligations under the Affordable Care Act and their obligations under the First Amendment of the United States/Wisconsin Constitution. Please communicate your attendance plans to Shannon Nest at snest@ruderware.com so we can make proper arrangements for the event. We look forward to seeing you at this Special Local Government Seminar.

Annual CWSHRM Human Resources & Labor Law Conference - 2014

Posted on February 28, 2014, Authored by ,

Holiday Inn & Suites, 1000 Imperial Ave, Rothschild, WI 54474 REGISTRATION Shannon Nest Ruder Ware PO Box 8050 Wausau, WI 54402-8050 or snest@ruderware.com Overcoming Overload, guest speaker, Ann Kerian Sex, Lies, and Facebook: An Employee's Right to Privacy in the Workplace, Ruder Ware Attorneys Sara Ackermann and Kevin Terry April 2014 Update on the Affordable Care Act - We're Getting Closer!, Ruder Ware Attorney Mary Ellen Schill The 10 Biggest Communication Mistakes and How to Avoid Them, guest speaker David Levin This seminar is co-sponsored by Central Wisconsin Society of Human Resource Management, and Ruder Ware L.L.S.C. For details and a registration form, please follow this link. Seminar cost: $125 for CWSHRM Members $150 for non-CWSHRM Members $60 for full-time college students

Vote Now and be Excluded Later

Posted on February 20, 2014, Authored by Dean R. Dietrich, Filed under Employment

Our recent blog talked about a proposed rule from the NLRB to establish new procedures for union elections. Known as the "quickie election" rule, it has been proposed by the NLRB for comment although there are strong indications that the rule will be adopted as proposed. One of the most significant aspects of the proposed new rule is how the NLRB will determine whether or not an employee is eligible to vote in the union election. The current rule allows for a hearing to determine whether or not certain employees would be considered supervisors and therefore ineligible to vote in the election (the most common issue litigated). Under the new rule, issues involving voter eligibility that involve less than 20% of the entire proposed bargaining unit would be decided after the election is held. Thus, certain employees who may actually be supervisors, would be eligible to vote in the election and if they are found to be a supervisor at a later date, the employee would not be included in the bargaining unit. The significance of this rule change for employers is that an employer may not be able to meet with these employees (who may or may not be supervisors) and discuss the union election or use these employees as part of its campaign against the union election. These employees who may be supervisors are a critical piece of the strategy that an employer can use to defeat a union election, but if their status as a supervisor is not determined until after the election, an important tool of the employer is lost. Employers must recognize the union election process will be changing significantly under this proposed rule. Employers must develop anti-union strategies now and implement them constantly in order to avoid what has often been called an ambush election petition from a union. More information about the "quickie election" rule will be included in our upcoming Blogs.

Mom's Bucket List Request Leads to Lawsuit - Seventh Circuit Declares Daughter's Care of Dying Mother During Trip to Vegas is FMLA Protected

Posted on February 3, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

Recently, the federal Court of Appeals for the Seventh Circuit (which covers Wisconsin), clarified that the FMLA applies when an employee requests leave so that she or he can provide physical and psychological care to a terminally ill parent while that parent is traveling away from home. In doing so, the Court disagreed with other federal courts that have considered the scope of FMLA leave to care for a family member with a serious health condition. The case is Ballard v. Chicago Park District (link here). In Ballard, Beverly Ballard, a Chicago Park District employee, requested unpaid FMLA leave to assist her mother during a six-day trip to Las Vegas. Ballard's mom had earlier been diagnosed with end-stage congestive heart failure and received hospice care although Ballard acted as her mother's primary caregiver, preparing meals, administering insulin and other medications, giving baths and dressing her mother. Apparently, one of Ballard's mother's end-of-life goals was to take a family trip to Las Vegas - a trip made possible through a charitable foundation serving terminally ill adults. The Park District ultimately denied Ballard's leave request and several months later terminated her employment due to unauthorized absences accumulated during the trip. Ballard filed suit under the FMLA. Ballard's employer asserted that Ballard's assistance to her mother did not qualify as leave to care for her mother, because the trip to Vegas was not related to a continuing course of medical treatment. At issue in the case was whether the FMLA's authorization of leave [i]n order to care for a family member with a serious health condition protected Ballards provision of caregiver assistance to her mom away from homeeven if not provided in connection with ongoing medical treatment. Significantly, the Court concluded that the FMLA's text does not restrict care to a particular place or geographic location, and includes physical care and pure psychological comfort and reassurance. The Court departed from other federal courts in concluding that the term care, as used in the FMLA, need not be connected to ongoing medical treatmentespecially because the definition of serious health condition explicitly states that active treatment is not a prerequisite. In other words, Ballard's leave to help her mom check an item off of her bucket list was FMLA protected. In light of Ballard, employers located within the territorial reaches of the Seventh Circuit must be aware that, [t]he relevant rule says that, so long as the employee attends to a family members basic medical, hygienic, or nutritional needs, that employee is caring for the family member, even if that care is not part of ongoing treatment of the condition. Interestingly, Ballard's employer suggested that a contrary conclusion is justified because employees will help themselves to unpaid leave to take vacations, simply by bringing seriously ill family members along.  Personally, I'm not buying that argument (I don't think the Court was too persuaded either).

Pom-poms and Circumstances: Professional Baseball Players' and Cheerleaders' March to the Courthouse - Provide Good Wage and Hour Reminder

Posted on February 24, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

Recently, the professional sports world has experienced a slew of wage and hour lawsuits, through which the stars on and off the field (well, maybe not off the field completely, but definitely on the sidelines) have claimed their larger-than-life employers failed to pay them the applicable minimum wages and overtime, as required under federal and state law. Just this month, several former minor-league baseball players filed a lawsuit in federal court, alleging the players minor-league salaries, when spread over the many hours these guys worked (e.g., time spent conditioning, strength training, practice and playing in official games), was not enough to equal minimum wage, and that the players did not receive overtime for overtime hours worked. For those baseball nerds (I'm in this group too as I represent several "boys of summer" so I use the term "nerd" affectionately) or HR nerds (again, I'm firmly in this camp) who are interested, the case is Senne v. Office of the Commissioner of Baseball, Case No. 3:14-CV-608 (N.D. Cal., Feb. 7, 2014). This is definitely a case worth watching. Also, within the last month, several cheerleaders for the Oakland Raiders ("Raiderettes") and Cincinnati Bengals ("Ben Gals") filed separate lawsuits through which these ambassadors of cheer have emphatically cried "Boooooooooo!" More specifically, these professional entertainers allege the flat fees they received as compensation for their performances do not, when spread over the many hours worked, equal minimum wage (as reported, some of the cheerleaders claim to have earned as little as $2.85 per hour in exchange for their labor). These lawsuits, while particularly interesting because they form part of the "sports worship" culture in which we all live, also serve as a great reminder to all employers - not just those with a stadium. Employers should look past the glitz and glamour of these lawsuits and appreciate the underlying cautionary lessons these cases provide. These lessons include: (1) a fancy title and a salary do not necessarily mean that an employee is exempted from receiving overtime compensation (in most states, for all hours worked over 40 in a work week) in fact, generally, there are very specific duties that an employee must also perform to be exempt from overtime; and (2) a lump-sum payment for all hours worked (think summer interns where this issue is a big concern and ripe for litigation) is tricky, and requires planning at the front end, to ensure that the applicable hourly rate is observed (roughly, total compensation total hours worked) is at least the applicable minimum wage. Employers need to be on their game and are encouraged to routinely reexamine "exempt" classifications and compensation plans for summer help. In the wage and hour world, there is no such thing as a "three strikes" rule.

Is a Policy of 12 Months and You're Out, Out?

Posted on February 28, 2014, Authored by Kevin J.T. Terry, Filed under Employment

The United Parcel Service, Inc.'s (UPS) motion to dismiss a claim filed by the Equal Employment Opportunity Commission (EEOC) challenging the company's leave policy was denied last week by the U.S. District Court in Illinois. EEOC v. United Parcel Service, Inc., N.D. Ill, No. 09C5291, February 11, 2014. For over a decade UPS has maintained a 12-month-and-out policy. Employees are separated from employment after 12-months of leave, unless they can return to work at that time without any restrictions. UPS supports this policy by claiming the ability to regularly attend work and not miss multiple months on the job is an "essential function" of the job. The Seventh Circuit has previously determined that regular attendance can be in fact an essential job function. The ADA, however, requires that an employer refrain from using "qualification standards" that screen out disabled individuals unless the standard is "job-related for the position in question and consistent with business necessity." The EEOC in the UPS case did not take issue with the attendance issue but rather the language that required "100% healing." Because of this language, the motion filed by UPS was denied and the issues went to a jury. Employers have been aware for years that a blanket 100% return to work policy is an issue. This case is a reminder. The focus on returning an individual to work after a medical leave needs to be on the interactive process and reasonable accommodations. A blanket policy based only on the number of months an employee has been on leave is not enough, at least in this Court's view, to free an employer from EEOC scrutiny.

25 Days or Less

Posted on February 18, 2014, Authored by Dean R. Dietrich, Filed under Employment

The notion of 25 days or less is the new watch word for the National Labor Relations Board and the proposed rules on "quickie elections." The NLRB has promulgated new rules that are subject to public comment which would expedite the union election process to be less than 25 days from the filing of a petition by a union seeking to represent employees of a company. This compares to an average of 38 days under the current rules regarding a union election. The importance of this time differential is that it reduces the amount of time that a company can campaign against the union election. Over the next several weeks, we will give you information about the proposed rules that create a new "quickie election" process. It is very important that non-union employers recognize that the union election process will change drastically under these proposed rules. Unions will be allowed to file a union election petition and have the election held in a very short timeframe even if there is still confusion and disagreement over which employees should be eligible to vote in the election. One of the mainstays of the proposed rule is that a Regional Director of the NLRB must schedule a hearing within seven days of the date of service of the election petition on the employer unless special circumstances exist. The current rule allows for the scheduling of a hearing within 14 days, so the timeline is cut in half. This hearing is used to determine whether certain employees are eligible to vote in the election, such as employees that are considered supervisors. Currently, an employer is allowed to file a written brief within seven days after a hearing to determine the eligibility of certain employees. Under the proposed rule, there would be no allowing for a post-hearing brief unless approval is given by the Regional Director. This again reduces the amount of time from the filing of the petition to the actual date of the election. Watch our blog for some additional information about the proposed NLRB rule on "quickie elections."

The Ultimate Bait and Switch? Female Job Applicant Who Claims She Was Forced to Perform Sexual Favors as Part of Application Process has no Title VII Claim Because the Job she was Applying for Did Not Exist.

Posted on February 26, 2014, Authored by Sara J. Ackermann, Filed under Employment

The story begins when Phil Vanaria, an employee of Cook County's Oak Forest Hospital learns from a friend that Krystal Wilson, an out-of-work massage therapist, was offering to perform massages at her home studio. Vanaria contacted Wilson regarding her services, and suggested there may be some positions open at the Hospital for which she would be qualified. (Yes, gentle reader, you can see where this is headed.) Of course, there was no job, and even if there had been a job, Vanaria did not have authority to hire anybody. He eventually convinced Wilson there was a physical therapist position that was available and encouraged her to apply. Throughout the interview process, Vanaria required Wilson to remove her clothing, kiss him, massage him and manually stimulate him. Vanaria even enlisted the help of a female friend to pose as an HR manager and call Wilson about the position. (Who IS this guy? How does he get another woman to help him with this?) Unfortunately the "HR Manager" indicated that before Wilson could be formally considered, she needed to meet with Vanaria one final time. This was enough to tip Wilson off that the interview process might not be legit (Really?) and she contacted the Hospital directly. (Better late than never sister!) Wilson then brings a Title VII claim alleging sexual discrimination and harassment. The Illinois District Court dismissed her claim, and last week the Seventh Circuit agreed Wilson had no claim because there was no actual job. Wilson v. Cook County, (No. 13-164, 2014 WL 503673 (7th Cir. Feb. 10, 2014).) Readers, this isn't rocket science. One cannot say they have been denied a job because of sex when there was no job in the first place. However, it is still very, very slimy.

Treasury Department Delays Employer Mandate for Small Employers; Lower Threshold for Avoiding Penalties

Posted on February 10, 2014, Authored by Mary Ellen Schill, Filed under Employment

This afternoon the Treasury Department announced that employers with 50 or more full-time equivalent employees (FTEs), but less than 100 FTEs, will not have to comply with the employer mandate of the Affordable Care Act until 2016. The determination of whether an employer meets the small employer requirements for this purpose would be based on 2014 headcounts. So, if an employer employed on average 50 or more FTEs during 2014, but less than 100 FTEs, that employer will not be subject to penalties for 2015. However, this small employer will have to report what coverage is offered to employees for 2015, that obligation will not change. For employers with 100+ FTEs in 2014, the mandate will still apply in 2015. However, these larger employers will have a lower threshold in determining whether the penalty can be avoided. For 2015 only, an employer can avoid the no coverage penalty if coverage is offered to at least 70% of full time employees, rather than 95%. For 2016, the threshold will revert to 95%. The Treasury Department estimates that the carve out for smaller employers (50 but less than 100 FTEs) will affect 50% of all employers subject to the pay or play mandate. It is important to note that the delay discussed above is found in final regulations with respect to the employer mandate which were issued today, February 10, 2014. These final regulations were much anticipated and provide final guidance on, among other things, how to determine full time employees, whether an employer is an applicable large employer for purposes of the mandate, and whether offered coverage is affordable coverage. We will provide updates to our clients and friends with an analysis of today's final regulations shortly.

Treasury Department Delays Employer Mandate for Small Employers; Lower Threshold for Avoiding Penalties

Posted on February 10, 2014, Authored by Mary Ellen Schill,

This afternoon the Treasury Department announced that employers with 50 or more full-time equivalent employees (FTEs), but less than 100 FTEs, will not have to comply with the employer mandate of the Affordable Care Act until 2016. The determination of whether an employer meets the small employer requirements for this purpose would be based on 2014 headcounts. So, if an employer employed on average 50 or more FTEs during 2014, but less than 100 FTEs, that employer will not be subject to penalties for 2015. However, this small employer will have to report what coverage is offered to employees for 2015, that obligation will not change. For employers with 100+ FTEs in 2014, the mandate will still apply in 2015. However, these larger employers will have a lower threshold in determining whether the penalty can be avoided. For 2015 only, an employer can avoid the "no coverage" penalty if coverage is offered to at least 70% of full time employees, rather than 95%. For 2016, the threshold will revert to 95%. The Treasury Department estimates that the carve out for smaller employers (50 but less than 100 FTEs) will affect 50% of all employers subject to the pay or play mandate. It is important to note that the delay discussed above is found in final regulations with respect to the employer mandate which were issued today, February 10, 2014. These final regulations were much anticipated and provide final guidance on, among other things, how to determine full time employees, whether an employer is an applicable large employer for purposes of the mandate, and whether offered coverage is "affordable" coverage. We will provide updates to our clients and friends with an analysis of today's final regulations shortly. If you have questions regarding the above, please contact Mary Ellen Schill, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

Turn Over the Voter List - You Have No Choice

Posted on February 21, 2014, Authored by Dean R. Dietrich, Filed under Employment

We have written about the proposed "quickie election" rule being considered by the National Labor Relations Board which is designed to expedite a union election proceeding. Another element of the proposed Rule requires the employer to turn over a list of all individuals (names) that would be considered eligible to vote in the union election before the pre-election hearing starts. Under this new requirement, the employer must give the union a list of the names, work locations, work shifts, and classifications of employees in the bargaining unit that is being sought by the union. This is the earliest that an employer has ever been required to give information to the union about potential voters in the election. A failure to provide the information would preclude the employer from contesting any of the issues about appropriateness of the bargaining unit or eligibility of individuals to vote who are on such a list. The proposed rule also requires the employer to provide both the NLRB and the union more information than ever required before and requires the information be provided within a period of two-days after a decision that calls for an election. The employer is required to provide the names, home addresses, work locations, shifts, and job classifications for the eligible voters as has been required in the past. However, the employer is also required to provide available phone numbers and e-mail addresses that are known for the election-eligible employees. Failure to provide this information would result in a union filling an objection to the election results if the results are unfavorable. These two requirements again are designed to expedite the election process and provide far greater information to the union to assist it in campaigning for a positive vote in the election. With the providing of this information and the reduction in time to conduct an anti-union campaign, employers are at a significant disadvantage if a union files an election petition to seek representation of company employees. Employers must be ever vigilant about possible union organizing activities in order to avoid being caught in an "ambush election" by the union.