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Searching for Articles published in June 2014.
Found 21 Results.

Retaliation Against a Public Employee for Giving Testimony is a No-No

Posted on June 25, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

A recent decision by the United States Supreme Court has clarified a very murky area of the law. Statements by a government employee may or may not be protected speech based upon the content of the speech and the circumstances under which the statements are made. Generally speaking, statements by a government employee that clearly address matters of general concern about government activities would be considered protected speech and a local government could not retaliate against that employee for making those statements. On the other hand, statements by a government employee that are really focused on items of interest or impact the specific situation involving the employee would not be considered protected speech and thus the government employee could be subject to discipline (including termination) based upon those public statements. The standards must be applied with very careful review of the situation that has caused the public speech to be made by the government employee. In the recent U.S. Supreme Court decision, it was held that statements made by a government employee when subpoenaed to give testimony in a hearing should be considered protected speech even though the statements are made about the government employee's workplace and are made during work time. The lower court held that the employer could take disciplinary action against the employee (termination in this case) based upon the content of the statements made, because the statements were made during work hours and involved accusations against a public official based on conduct the employee had knowledge of from the workplace. The seven justices held that these statements should be protected under the First Amendment because the statements were given during an administrative hearing and the government employee was under subpoena to come to the hearing and give that testimony. The Supreme Court held that retaliation against the employee in the form of dismissal when the employee was testifying under oath to information he was aware of should not be allowed and the speech/testimony should be considered protected speech. Local government officials are most often better off not trying to discipline a public employee for political speech or public statements that are critical of local government activities. The use of social media, however, has made these types of public statements far more common and some justification exists for discipline depending upon the nature of the comments and the scope of the comments made. Public officials should not decide whether to take discipline without conferring with legal counsel about the protections that may exist under the state and federal constitutions.

Is Six Months Enough?

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

A recent decision from the Tenth Circuit Court of Appeals has addressed the question whether a six-month leave of absence for a disabled employee is sufficient to satisfy the reasonable accommodation requirement. The Court of Appeals found that Kansas State University satisfied the reasonable accommodation requirements under the Rehabilitation Act when terminating an assistant professor suffering from cancer who had been granted a six-month paid leave of absence while undergoing cancer treatment. The Court found that the Rehabilitation Act did not generally compel an employer to hold a position for a non-performing employee for more than a six-month period. The Rehabilitation Act is a public sector law similar to the Americans with Disabilities Act. While this is an older law, it has the same concepts and language as found in the Americans with Disabilities Act and its Amendments. The Tenth Circuit Court of Appeals reviewed language from the EEOC manual which holds that an employer did not have to retain a worker who was unable to perform their job functions for more than six months by finding that the timeframe of more than six months was "beyond a reasonable amount of time." Wisconsin employers must remember that decisions under the Wisconsin Fair Employment Act have suggested that employers must show flexibility when considering whether or not to continue the employment status (without pay) of an employee who was undergoing treatment for a medical condition. The limit of six months does not automatically apply in a case involving a Wisconsin employer but it does offer some significant guidance as to what would be considered "reasonable" under the requirement that the employer provide a reasonable accommodation for an otherwise "qualified disabled person." We do not have a decision in Wisconsin that directly speaks to the length of time that an employer must continue the employment status of an employee suffering from a disabling condition but it appears the six month period would meet the standard of being "reasonable" under the circumstances.

The Role of Confidentiality Agreements in a Corporate Compliance Program

Posted on June 26, 2014, Authored by John H. Fisher, II, Filed under Health Care

A recent federal court decision from Pennsylvania illustrates the importance of a confidentiality agreement as part of a compliance program. The Pennsylvania court found that a confidentiality agreement that had been signed by an employee restricted the ability of the whistleblower claimant to use confidential information to support its qui tam claim under the federal False Claims Act. The whistleblower had attempted to base the False Claims Act action on information that was obtained through employment such as contracts, business data, audit reports, and other documents. The target company filed a counterclaim against the whistleblower that alleged breach of the confidentiality contract. The court refused to dismiss the counterclaim. Although there is a split on how federal courts come down on this issue, the existence of a valid confidentiality agreement can be an arrow in your quiver if you are faced with an employee's whistleblower claim. Your compliance program should include a systematic program to protect your trade secrets and confidential information. For more information about this and other health care law and compliance issues, please contact me at

Inherited IRAs are Not Protected From Bankruptcy Creditor Claims

Posted on June 13, 2014, Authored by Shanna N. Yonke,

Generally, federal and state bankruptcy laws protect traditional individual retirement accounts (IRAs) from creditor claims. Courts have differed, however, on whether those laws also protect an IRA that is inherited (an "inherited IRA") by a child or other beneficiary of the account owner. Historically, Wisconsin courts have taken the position that inherited IRAs are not protected from creditor claims. A bankruptcy case involving Heidi Heffron-Clark, a Wisconsin resident who had an inherited IRA, recently found its way to the United States Supreme Court. She claimed her inherited IRA as an exempt asset in her bankruptcy proceeding. The bankruptcy trustee and creditors objected to the claimed exemption. Yesterday, the United States Supreme Court issued its decision in the case, holding that inherited IRAs are not protected from creditor claims. What does this case mean for you? If you want to leave retirement assets to your beneficiaries and you want those assets to be protected from the claims of your beneficiaries' creditors, then you should do two things. First, you should provide in your estate planning documents that upon your death (or upon your surviving spouse's death), a specially designed trust will be created for each of your beneficiaries. Each trust will be designed to protect assets from the claims of a beneficiary's creditors, including claims of a divorcing spouse. In addition, each trust will be designed to qualify as a "designated beneficiary" of an inherited IRA the same as if you had named the trust beneficiary as the direct beneficiary of the IRA. This allows the deferred income in the inherited IRA to be "stretched-out" over the beneficiary's life expectancy. Second, and just as important, you should sign new beneficiary designation forms for your IRAs, 401(k) plans and other retirement plans. 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No More Marijuana Taxes!

Posted on June 25, 2014, Authored by Amy E. Ebeling, Filed under Tax Deductions

I can't help but write a puff piece about the recent lawsuit filed in a Denver District Court earlier this week. In the lawsuit, the attorney is asking the court to block marijuana taxes in Colorado, claiming the state's tax system violates the Fifth Amendment, which protects people from self-incrimination. The attorney argues that when marijuana growers and sellers pay their taxes, they are effectively incriminating themselves under federal law, which still bans marijuana. The lawsuit cites the supremacy clause of the United States Constitution, arguing "federal law is supreme over, and preempts, state or local law." Thus, the argument is that the Fifth Amendment right to protect oneself from incrimination is supreme or preempts Colorado's tax laws (or that the federal law is higher than the state law). Some legal experts are, however, concerned the strict interpretation of that argument could mean Colorado's own court may need to rule that the state's laws allowing marijuana sales are illegal. The court's ruling and reasoning behind their ruling will certainly be interesting considering it may set precedent for taxpayers not to pay tax on income earned through illegal activities. Although we don't have to worry about pot taxes in Wisconsin, the outcome of this case could impact taxation by all states of unlawful activities. We will keep you informed of any developments here on Tax Deductions, but no promises the pot puns will get any better. Follow Amy on Twitter @AmyTaxEsq

Wausau and Other Wisconsin Taxpayers Beware of Tax Jail Scam

Posted on June 19, 2014, Authored by Amy E. Ebeling, Filed under Tax Deductions

I received a telephone call from a prospective client yesterday. Let's call her Suzie. Suzie called me asking for guidance on how to handle a phone call she received from the IRS. The caller stated on Suzie's voicemail that Suzie had 2 hours to return the call and resolve her tax issues or the police would be at her door to throw her in jail. As you would assume, Suzie was a bit upset by such a threat and immediately contacted a tax professional to figure out what she should do. I've been working with the IRS for a number of years and I have never heard of the IRS making such a threat (coordinating local police to arrest someone for overdue taxes is likely a bit too ambitious for a government agency), but when it comes to the IRS and taxes, you can never be too careful. I asked Suzie if she had any reason to believe she had a tax issue and of course, Suzie said no. I, however, instructed Suzie to call the IRS (and, yes, sit on hold for the better part of an hour) and simply confirm with the IRS that all is well with her taxes. Suzie called the IRS at the number I provided to her (1-800-829-1040), not the number left on her voicemail. Suzie confirmed all is well with her taxes and the IRS stated that other taxpayers have received similar threatening phone calls. Moral of the story -- Wisconsin taxpayers, please be wary of anyone contacting you claiming to be the IRS or alleging that you have taxes due. I urge you to contact the IRS directly or work with a tax attorney to confirm and resolve any tax issues. Follow Amy on Twitter @AmyTaxEsq


Posted on June 16, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

If it hasn't happened yet, trust me, it will. Every public official seems to be put in a position of conflict while in office. Here is a link to a recent article about a City of Green Bay public official who has chosen to abstain from any further voting on a public issue involving Walmart. The article does not specify what the exact conflict was that Mr. Moore had, however, the article does a great job of illustrating the proper way an elected official and a local government body should handle known conflicts. By abstaining from voting on the matter moving forward, Mr. Moore has properly addressed his personal and official conflict. The Wisconsin Statutes govern the ethics of local officials. And while the below list is not all inclusive, here are a couple of bits to remember when dealing with conflict issues: No local official may take any official action substantially affecting a matter in which the official, a member of his or her immediate family, or an organization with which the official is associated has a substantial financial interest. No local official may use his or her office in a way that produces or assists in the production of a substantial benefit, direct or indirect, for the official, one or more members of the official's immediate family either separately or together, or an organization with which the official is associated. There are penalties for violating the code of ethics as it relates to conflicts. ALWAYS ASK! It is prima facie evidence of intent to comply with Wis. Stat. 19.59, or any ordinance enacted thereunder, when a person refers a matter to and abides by the advisory opinion, if the material facts are as stated in the opinion request. Our local government attorneys are always available to assist local government units and local officials as it relates to ethics issues and specifically conflict issues. Asking ahead of time will assure the municipality and local officials stay out of hot water!

In Memoriam

Posted on June 19, 2014, Authored by ,

Indelible Legacy It is with great sadness that we mourn the passing of our long-time partner and friend, G. Lane Ware. After Lane was admitted to the bar in 1965, he raised the bar for his entire profession through his legal and civic leadership. He was not only a mentor to countless professionals within our firm but to young entrepreneurs in Wausau and surrounding communities, as well as to attorneys throughout the state of Wisconsin. A selfless and tireless leader, Lane embodied integrity, grace under pressure, and an insatiable passion for business and the law. We will miss him greatly. G. Lane Ware began his legal career after graduating from the University of Wisconsin Madison Law School in 1965 at what was then known as the Ruder & Staples law firm. George Ruder and Stanley Staples were well established corporate attorneys. A native of Green Bay, Lane had served as a placement director of law students and informed Stanley Staples, who was on a recruiting trip in Madison, that he was interested in practicing in Wausau. Both Ruder and Staples worked closely with Lane as he honed his skills in corporate law and securities law. One of the first projects Lane tackled was the registration of Mosinee Paper Mill Company with the Securities and Exchange Commission in 1966. He was also involved in Central Wisconsin Bankshares early development. After practicing law nearly to the end of his life, George Ruder died on December 4, 1970, leaving a void in both the firm he had created and the community he loved. The firm had barely recovered from the shock of losing its founder when Stanley Staples announced in 1972 that he was leaving. He went on to manage assets for the charitable foundations formed by the Alexander family. The house that Ruder had built appeared to have lost its foundations. What remained of Ruder & Staples, S.C. consisted of five attorneys all of them in their twenties or early thirties. The firms remaining leaders were now forced to decide whether to part ways and affiliate with other established firms or to keep the Ruder law firm intact. This was a critical moment in the history of the firm. It would take a tremendous amount of work and professional dedication to convince clients that these young attorneys could continue to provide the quality of legal services they had come to expect in the era of George Ruder and Stan Staples. George Ruders associates concluded that the risk was worth the potential gain. In 1972, they formed the law firm of Ruder, Ware, Michler & Forester, S.C. Their first order of business was the election of G. Lane Ware as President, a position he held until 1999. A new generation of builders had assumed the mantle of leadership, but their future was anything but certain. The new team of young attorneys worked at strengthening their position in the community by encouraging colleagues to attend legal seminars, assume active roles in professional organizations, and become active participants in Wausau community life. Through this, they succeeded in reinforcing the Ruder firms long-held image of corporate citizenship and social responsibility. Ruder, Ware, Michler & Forester, S.C. continued to expand over the next decade and, by 1988, employed eighteen attorneys with a variety of specializations. The everchanging business environment created businesses with opportunity of acquisitions, mergers, and consolidations. Trends with the banking industry mirrored the experience of the corporate world and mergers and acquisitions became commonplace in the 1970s and 1980s. By the strong leadership of Lane, the firm now known as Ruder, Ware & Michler actively represented clients in negotiations, mergers and financings that changed the character of the local financial community. To date Ruder Ware business attorneys have been involved in acquisitions, condemnation proceedings, contract negotiations, financings, and the resolution of environmental issues. Thus, as George Ruder did decades before, the modern Ruder law firm assisted the community builders of this generation in meeting the challenges of a changing environment. As early as 1974, when G. Lane Ware encouraged firm attorneys to consider the areas of law in which they most wanted to work, the firm adopted an internal organization plan based on the development of practice groups. As the firm envisioned it could serve its clients better as a full service law firm, practice groups of Litigation, Trusts & Estates, and Employment/Labor departments were formed, all with attorneys bringing with them a strong reputation in their line of expertise. Throughout most of its history, attorneys from the Ruder law firm worked to enrich the areas cultural life. When Wausau saw a need to coordinate efforts to bring touring performances to Wausau, the Performing Arts Foundation (PAF)was formed. The PAF was created to organize local operations and encourage entrepreneurial efforts in the arts. Central to the PAFs early success was the election of G. Lane Ware as its first president. The service contributions of G. Lane Ware have been equally varied. A distinguished leader in the legal profession, Ware served the American Bar Association in a number of capacities. Not only had he gained the respect of his peers at the national level, but in 1989, his Wisconsin colleagues elected him to the position of State Bar President. He also held numerous leadership positions with the State Bar. Locally, Lane served as a director of the University Marathon County Center Foundation, president of the Wausau Area Chamber of Commerce, president of Central Wausau Progress, and a director of Leigh Yawkey Woodson Art Museum as well as other non-profit organizations as a director and officer. Lane served as board president and on several committees for the Wisconsin Law Foundation and The Fellows of Wisconsin Law Foundation. He was also president of the Marathon County Bar Association, a director of Wisconsin Lawyers Mutual Insurance Company, chairman of the Aspirus Health Foundation, president of the Community Foundation of North Central Wisconsin, chair of Leadership Wausau/Marathon County, chair of Marathon County Development Corporation, president of MURCO Foundation, president of the Wausau Area Chamber of Commerce, council member of Wisconsin Humanities Council, and a board member for the Wisconsin Historical Foundation. His contributions are felt throughout the state as well as the Wausau community. Lane was a distinguished and trusted attorney, a legend we were privileged to know. He was instrumental in the establishment of the Ruder Ware law firm, his legacy and contribution to the firm unmatched and felt for many years to come. Ruder Ware will strive to continue the high degree of service it provided while under Lanes leadership.

Estate Recovery Program Changes Effective August 1, 2014

Posted on June 5, 2014, Authored by Shanna N. Yonke,

Last year, Wisconsin legislators approved major changes to Wisconsin's Estate Recovery Program (ERP), which seeks repayment of long-term care benefits provided to medical assistance recipients from their estates upon their deaths. Yesterday, the Wisconsin Department of Health Services issued guidance regarding how it will implement these new ERP changes. This legal update explains how the ERP changes may affect you. Life Estates. If you transfer real estate to someone else but retain the right to use or benefit from the real estate for your lifetime, your retained interest in the property is called a "life estate." If your life estate interest is created on or after August 1, 2014, and you receive medical assistance during your lifetime (or your spouse received medical assistance during his or her lifetime), ERP may recover the value of the life estate interest upon your death. The value of the life estate interest is determined using a formula based upon life expectancy tables. If your life estate interest was created before August 1, 2014, it is not subject to the ERP. Liens. If you receive medical assistance during your lifetime and you own a home, ERP has been able to impose a lien on your home when it is determined that you are permanently institutionalized and not likely to return home. A lien is a public notice indicating that you owe money to ERP and is recorded in the office of the register of deeds for the county in which your home is located. While ERP's ability to file a lien against homestead property owned by you is nothing new, ERP may now also file a lien against a life estate interest on real estate that is used as your home if the life estate is created on or after August 1, 2014. The lien will need to be paid before the home may be sold or paid at closing upon the sale of your home. Surviving Spouse's Estate. As of August 1, 2014, if you receive medical assistance during your lifetime and your spouse survives you, ERP may recover up to 50% of your spouse's estate upon your spouse's death for the value of medical assistance benefits paid on your behalf. Absent a marital property agreement to the contrary, all property owned by you and your spouse is presumed to be marital property and each spouse is considered to own an undivided one-half interest in all property. Marital property agreements will become very important documents when one spouse qualifies for medical assistance benefits so the impact of claims by the ERP can be lessened upon the death of the surviving spouse. Joint Tenancy Property. A joint tenancy is a form of property ownership in which each joint tenant has an undivided fractional interest in the property. If your joint tenancy is created on or after August 1, 2014, and you receive medical assistance during your lifetime, ERP may recover the value of your fractional interest in the property at the time of your death. Previously, only joint tenancy bank accounts were subject to the ERP, but now all jointly held property, including real estate, will be subject to the ERP. Life Insurance. If you purchase any life insurance policy on or after August 1, 2014, and you receive medical assistance during your lifetime, ERP may recover the death benefit of the policy regardless of who you have named as the beneficiary of the policy. Life insurance policies obtained before August 1, 2014, are not subject to the ERP. Revocable Trusts. If you created a trust and you may revoke it at any time while you are living, the trust is revocable. ERP may recover your interest in any revocable trust created on or after August 1, 2014. Revocable trusts created before August 1, 2014, are not subject to the ERP. If you have a spouse who is currently receiving medical assistance benefits, it is highly advisable to consider creating a revocable trust and transferring your assets to that trust before August 1, 2014. Other Non-Probate Property. As of August 1, 2014, ERP may recover the value of any other non-probate property upon your death. Any property that will not pass through the probate process upon your death is called "non-probate property." If you are able to designate a beneficiary of an account or other asset, then it is likely to be non-probate property. Common examples of non-probate property include retirement accounts (which are usually controlled by beneficiary designation) and bank accounts (which are sometimes controlled by pay-on-death or "P.O.D." designations). Services Subject to Recovery. ERP may recover for all long-term care services provided to any medical assistance recipient age 55 or older on or after August 1, 2014. Long-term care services include in-home, community-based, and nursing home care. DHS pays a monthly rate per medical assistance recipient of long-term care services. The monthly rate may be greater or lesser than the value of the services actually received by a medical assistance recipient. Before these changes, ERP recovered the value of the services actually received by a medical assistance recipient upon his or her death. As of August 1, 2014, ERP may recover the monthly rate, regardless of the value of the services actually received by a medical assistance recipient. If you have any questions about the ERP changes and how they affect you, please contact any of the attorneys in the Trusts & Estates Practice Group at Ruder Ware.

Stop Talking About Your Compensation - Not

Posted on June 10, 2014, Authored by Dean R. Dietrich, Filed under Employment

Many companies have a policy that prohibits employees from talking about their salary or benefits in order to avoid morale issues in the workplace. It is sometimes hard to enforce a policy like this, but companies believe it is important to make it clear that a discussion of salary that an employee receives is not acceptable in the workplace. Recent statements by General Counsel Richard Griffin Jr. have made it very clear that the NLRB will be looking to stop these types of policies from being implemented. General Counsel Griffin spoke at a recent labor law conference and stated that company policies which forbid workers from discussing compensation will be on the top of his list of priorities to eliminate on the theory that such policies are a violation of an employee's right to protect it's speech about wages, hours, and conditions of employment, known as Section 7 protected speech. General Counsel Griffin believes that policies of this type are a clear violation of NLRA rights and should not be included in an employee handbook or workplace rule. Attorney Griffin is relying upon a recent NLRB ruling which held that a trucking company violated federal law by maintaining a confidentiality policy that prohibited workers from discussing wages. General Counsel Griffin also spoke about the Board precedent that prevented employees from using company e-mails to engage in union discussions and union organizing campaigns. The NLRB is seeking arguments on a case that looks to overturn the prior precedent and would allow the use of company e-mail to communicate between employees about union organizing efforts. Employers must be very careful that they are aware of the new strategies being adopted by the NLRB. Company policies are under attack and will be used as a basis for unfair labor practice claims against a company even in a non-union setting.

When Was the Last Time You Dusted Off Your Non-Solicitation and Distribution Policy?

Posted on June 18, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

Many employers, in an effort to improve workplace productivity, efficiency and safety, implement so-called "Solicitation and Distribution of Materials" policies. These policies generally prohibit non-work-related communications by employees during work time, as well as distribution of non-work-related materials in work areas [or distribution in non-work areas by employees during work time]. These policies may also have a secondary effect of decreasing the likelihood of successful union organizing. For this reason, such policies have historically been scrutinized by the National Labor Relations Board (Board). Recently, the Board gave employers good reason to dust off employer Solicitation and Distribution of Materials policies. Earlier this month, in Food Services of America, Inc., 360 NLRB No. 123, the Board concluded that the following policy violated the National Labor Relations Act: Solicitation discussions of a non-commercial nature, by Associates, are limited to the non-working hours of the solicitor as well as the person being solicited and in non-work areas. (Working hours do not include meal breaks or designated break periods)[underscore added for emphasis]. According to the Board, the above policy language is problematic, because the language could be interpreted to mean solicitation is not allowed unless employees are on nonworking hours AND in non-work areas. In other words, notwithstanding the employer's position that the policy is intended to permit solicitation in work areas between employees not engaged in work, the Board struck it down - intent doesn't matter. As the Board stated in its decision, the "standard affirmative remedy" for maintenance of unlawful work rules is immediate cancellation of the offending rules, and posting/dissemination of corrected rules. However, employers are also generally required to post a standard notice of union rights' poster in conspicuous locations throughout the workplace, for 60 days. For most non-union employers, this requirement is not generally well received by management. In light of the Board's decision in Food Services of America, Inc., it's time to dust off that old solicitation and non-distribution policy. Remember, solicitation is allowed in work areas, as long as both employees involved are not supposed to be working at the time.

Council of State Governments Provides Recommendations for Student Discipline

Posted on June 12, 2014, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

One of the more difficult areas of our practice deals with assisting school districts through student discipline and serving as counsel to districts during student expulsions. This week, I came across an interesting article in the Washington Post which addresses the increasing difficulty districts have in dealing with student discipline, get it here: Schools Get Road Map for Improving Discipline Practices. The article focuses on a report released by the Council of State Government's Justice Center that included 60 recommendations intended to help schools reduce suspensions and create better learning conditions for students. The 60 recommendations for change cover a number of topics and suggest that suspension be used only after taking other steps like: peer conferences, referrals to support teams and restorative practices that help make up for harms done. Here is a link to the lengthy report - The School Districts Consensus Report.

Who needs a Tax Extenders Bill? It's only June!

Posted on June 5, 2014, Authored by Amy E. Ebeling, Filed under Tax Deductions

Over the past few years, we have all become accustomed to tax deductions, credits, and reduced rates expiring. We have also become accustomed to our elected officials debating until the very last minute about whether to extend sunsetting tax provisions. I am eager to report that 2014 will be no different - a senate bill to renew $85 billion in various tax breaks for individuals and businesses is likely stalled in the U.S. Senate until after the November elections. Senate Bill 2260 titled EXPIRE (Expiring Provisions Improvement Reform and Efficiency) Act was introduced on April 28, 2014. The Bill moved through the Senate Finance Committee and the Senate moved to consider the Bill without amendments in mid-May. The Bill sought to extend approximately 50 temporary tax provisions known in Congress as the "tax extenders." The tax extender provisions covered a variety of deductions and credits relating to homeownership, charitable giving, education, business research, depreciation, energy, and corporate taxation, including international taxation of business and the Work Opportunity Tax Credit. The tax extenders expired at the end of 2013 and the Bill sought to renew them through 2015. This week Senate Majority Leader Harry Reid stated that due to Republican outrage over not being allowed to offer amendments to the Bill, the Bill would likely sit until after the November elections. A majority of 60 votes is required to end debate on any bill in the Senate. On May 15, the vote of 53-40 left the Bill open for debate. All GOP members except one voted against ending debate in protest of Reid's refusal to consider amendments to the Bill. Reid stated yesterday that the Bill is likely deadlocked until November. So, once again, the taxpayers (and those of us who work in the tax industry) are left to wait out Congress. There is nothing like the passing of a new tax bill to put everyone in the holiday spirit. Follow Amy on Twitter @AmyTaxEsq

Are Employment Application Questions About Convictions and Arrests Taboo?

Posted on June 16, 2014, Authored by Ruder Ware Attorneys, Filed under Employment

Recently, several businesses have asked me to carefully scrutinize their employment application forms for compliance with state and federal law. Interestingly, one question that consistently arises is whether employers in Wisconsin are permitted to ask questions about convictions and arrests within employment application forms. I have found that there is a great deal of confusion surrounding this issue. First, unlike federal law (and most other states, for that matter), Wisconsin law generally prohibits employers from discriminating against applicants (and employees) on the basis of "conviction record" status and "arrest record" status, absent certain narrow exceptions. Generally, a Wisconsin employer may reject a candidate for employment who has been convicted of a felony, misdemeanor or other offense, or who has been arrested and has a pending criminal charge filed against him or her, when the nature of the offense/pending criminal charge is "substantially related" to the circumstances of the job sought (e.g., an applicant convicted of embezzlement who applies for a bank teller position). This exception to the rule generates a great deal of confusion (I've talked to HR representatives who, prior to talking to me, believed any conviction supported termination of employment with impunity, or who believed an arrest automatically disqualifies an applicant). Understandably, then, there is also a great deal of apprehension about what questions employers are permitted to ask on employment applications. There have been discrimination complaints filed with the Department of Workforce Development concerning allegedly illegal and discriminatory questions about convictions and arrests on employment applications. One such case is Lee v. Milwaukee County (LIRC, Sept. 26, 2008). In Lee v. Milwaukee County, an applicant who was rejected for a position of employment filed a discrimination complaint against the County, alleging that questions on the application form constituted conviction/arrest record discrimination. The questions on the application form read as follows: Have you ever been convicted of a felony or misdemeanor? Have you ever been found in violation of an ordinance? Do you have any pending charges for a felony, a misdemeanor, or a pending ordinance violation (other than a minor traffic violation)? In Lee v. Milwaukee County, the Labor and Industry Review Commission concluded that these questions are not discriminatory. Why? Because the Fair Employment Act permits employers to request conviction record information from applicants, and because the question about arrests only asked about pending charges. It should be noted here, however, that questions about pending charges should be limited to pending criminal charges. Also, if this were my client, I would recommend adding language about how a conviction or pending criminal charge is not an absolute bar to employment, and is only considered if substantially related to the position sought. Now, hopefully, there is less confusion out there.

Get Your 2015 Health Savings Account Limits Here!

Posted on June 10, 2014, Authored by Mary Ellen Schill, Filed under Tax Deductions

Sorry to be a little late to the Ruder Ware tax blog party, but I have arrived bringing a nice housewarming present. Let's just say I'm re-gifting an earlier article I posted on our website back in April. Health savings accounts (HSAs) are tax creatures too, and those who love tax law like our Tax Deductions followers will definitely be interested in the HSA limits announced by the IRS to be effective in 2015. For a handy chart showing those limits, read our 2015 Health Savings Account Cost of Living Adjustments legal update. Follow Mary Ellen on Twitter @wausauesq

Taxpayers Have Rights???

Posted on June 11, 2014, Authored by Amy E. Ebeling, Filed under Tax Deductions

Taxpayer Bill of Rights - On Tuesday, the Internal Revenue Service (IRS) unveiled the new and improved "Taxpayers' Bill of Rights." Unbeknownst to most taxpayers, the Internal Revenue Code actually sets forth rights of taxpayers (who knew!). The IRS touts that the new Bill of Rights will make it easier for taxpayers to understand their rights when dealing with the IRS. The new Bill of Rights will be sent with all IRS notices including an audit or collection notice. Follow Amy on Twitter @AmyTaxEsq

Watch Out - Protections Against Swearing at Boss

Posted on June 4, 2014, Authored by Dean R. Dietrich, Filed under Employment

The National Labor Relations Board continues to reach out to provide protection to employees. In a recent decision, the Board concluded that an outburst in the workplace by an employee was considered protected speech, because the employee did not explicitly threaten violence and did not act in a violent fashion. The employee did, in a raised voice, call his supervisor by a number of unacceptable names using the "f" word in conjunction with other words. The employee even threatened the supervisor by saying that if the supervisor fired the employee, the supervisor would regret it. The employee was terminated and filed an unfair labor practice charge with the National Labor Relations Board. The Board concluded the termination of the employee was in retaliation for conduct that occurred at a meeting, and that the employee should be protected from retaliation to better serve the goal of fostering collective action without unduly impairing the employer's interest in maintaining workplace order. In other words, an employee can use swear words when addressing a supervisor and not be subject to termination, because the statements may be considered protected speech. This makes me wonder what will happen next. Is it protected speech to criticize the company in front of customers or can a company take action when there is a disruptive employee? I guess it remains to be seen.

Royal Flush! FBARs Due June 30th

Posted on June 18, 2014, Authored by Amy E. Ebeling, Filed under Tax Deductions

This is your reminder that your Foreign Bank and Financial Accounts Reports (FBARs) are due on June 30th. If you have a financial interest in or signature authority over a foreign financial account, including a bank account, brokerage account, mutual fund, trust, or other type of foreign financial account exceeding certain thresholds, you must report such accounts annually to the IRS by electronically filing a Financial Crimes Enforcement Network (FinCEN) Form 114, Report of Foreign Bank and Financial Accounts. When you file your FBAR, do not forget to include your online poker accounts and maybe your Bitcoin exchange account. In a recent court decision, a judge held that online poker accounts need to be reported on FBARs if poker sites are owned by foreign entities and function as banks (meaning, one may deposit, withdraw, or transfer money). Also, although we do not have a court decision, commentators are recommending that taxpayers report their Bitcoin exchange accounts on FBARs. (Please do not ask me how Bitcoins work because like the rest of the world, I still haven't quite figured them out.) Follow Amy on Twitter @AmyTaxEsq

Fair Share Dues - Probably No Change

Posted on June 30, 2014, Authored by Dean R. Dietrich,

Today, the United States Supreme Court issued a decision that strikes down the right of a public sector union to charge "fair share" dues from certain public sector employees in the State of Illinois. This decision focuses on a unique situation where state employees are represented by a union but most of their employment is actually controlled by an individual person who is receiving personal care services from the individual employee. The employees are subject to a labor agreement with the State of Illinois, but the purpose for the labor agreement is primarily to establish uniform wages for employees serving in this "personal assistant" position. We do not think this decision changes the right of a public sector union to charge fair share dues to a regular, full-time/part-time employee of a local government unit. The Supreme Court in a 5-4 decision, made it very clear this decision only applied to the unique situation of these "personal assistant" employees. We will review this decision further to see if there is any direct impact on fair share dues requests for public sector employees, but we are doubtful that this would affect fair share dues in the police and fire setting. If you have questions regarding the above, please contact Dean R. Dietrich, the author of this article, or any of the attorneys on the Local Government Focus Team, or the School Districts and Educational Institutions Focus Team of Ruder Ware: Steve Lipowski, Randi Osberg, or Mary Ellen Schill.

Quality and Cost Provider Scoring

Posted on June 19, 2014, Authored by John H. Fisher, II,

Very recently, we have seen commercial payors begin to roll out provider scoring systems. Information about the specifics of these systems is still developing, so I am not providing details at this time. Some of you may have already encountered this issue in connection with United Health's provider tiering system. Under this scoring system, payors will rate providers based on quality and cost. Provider ratings for cost and quality are made public by publication on the payor's website. It is our understanding that health insurance products may be offered in the future that provide incentives for patients to select providers who have better quality and/or cost rankings. For example, patients may have a lower co-pay if they receive service from a provider with a better quality and/or cost ranking. The problem with this system is that it is not clear what data is being used by the payor to rank providers. In at least some cases, the data being used appears to be highly inaccurate and may include data that is not impacted by the specific provider. Providers should become aware of any provider rating systems being implemented by payors. You should determine how you rank in all aspects of the payor's system. If your rating is less than satisfactory, you should push the payor to provide you with the data it used to make its determination. You may discover the data that is being used is inaccurate, incomplete, or overly broad. For example, the payor's system may include the services of providers who refer to you and/or to whom you make referrals. This may result in inclusion of data over which you have absolutely no control. We are beginning to hear stories of payors imposing unreasonable burdens on providers who want to investigate the data being used to rate them. For example, providers may be given a very short window in which to review applicable data. Provider review may require audit of the individual patient records. If the number of claims is large, the provider may be forced to expend significant resources just to verify the data being used. A provider could be seriously damaged if the data used as the basis for the rating is flawed. In addition to devotion of resources to question the data, the publication of an inaccurate rating could cause a loss of patients and revenue to the practice. Practice losses will be even more serious if payors launch insurance products that provide financial incentives to patients to steer away from providers and who have less than favorable ratings. For more information on these issues and approaches for dealing with payor rating systems, feel free to contact Ruder Ware Health Care Attorney John H. Fisher, II.

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