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Searching for Articles published in August 2014.
Found 10 Results.

Broad Confidentiality Rule - Violation of Employee Rights?

Posted on August 11, 2014, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the National Labor Relations Board has again highlighted the lengths to which the NLRB will go to seek out protection of employee rights under Section 7 of the National Labor Relations Act. This Section allows employees to communicate regarding union organizing activities and exchange information amongst employees regarding possible union organizing efforts without retaliation by the Employer. In a recent decision, the Board, by a 2-1 margin, found that the confidentiality rule in the Company Code of Business Conduct violated the employee rights to discuss things like wages and terms and conditions of employment. The confidentiality portion of the Code of Business Conduct was directed at employees and indicated that customer and employee information should be kept secure and that such information could only be used "fairly, lawfully and only for the purpose for which it was obtained." The majority of the Board felt that this language was unlawful because employees could "reasonably construe the admonition to keep employee information secure to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment." It was argued that the Code of Business Conduct was designed to inform employees of the business ethics of the Company and not as an employee handbook with work rules affecting employee conduct. This argument fell on deaf ears even though the administrative law judge had used that rationale to find no violation of the employee rights protected by Section 7. This decision shows that the Board is taking every step to ensure employee rights. Some would suggest that it is reaching well beyond the rationale used in the past by the Board to find a violation of Section 7 rights. Employers must recognize the risks that exist under these very liberal interpretations of Section 7 rights afforded employees. A review of the Company handbook may be appropriate to ensure there is no provision that could fall under this scrutiny.

New Decision - Same Result - Same Worry

Posted on August 12, 2014, Authored by Dean R. Dietrich, Filed under Employment

Another decision from the National Labor Relations Board has created the same worry for employers. An NLRB judge recently ruled that several portions of a company employee handbook restricted the rights of workers to organize and discuss their conditions of employment and found there was a violation of the Section 7 rights of the employees. In a decision involving a hotel operator, Hostmark Hospitality Group, the administrative law judge found that the company violated the National Labor Relations Act by maintaining an overly restrictive employee handbook. The judge felt several policies in the employee handbook were improper or illegal including a policy that prevented employees from accessing the hotel facilities when not on duty. The judge also found that a policy which directed employees not to speak with the media was a violation of the law as well as a confidentiality policy which allegedly gave employees the impression they were prohibited from discussing their wages or conditions of employment. The judge ordered the company to rescind the handbook policies that he determined were in violation of the National Labor Relations Act. This is again another decision by the NLRB that scrutinizes the policies of a company and holds that a policy which seems to interfere with the freedom of speech of an employee to talk about wages and working conditions was a violation of the law even if the company policy was simply a declaration of the need for confidentiality of company records and information. This decision again shows the lengths the NLRB will go to find that a company policy violates the union organizing rights of employees and is therefore in violation of the National Labor Relations Act. Employers should give careful review to their employee handbooks to avoid this type of scrutiny and the potential for an unfavorable ruling by this pro-employee Board.

Local Government Seminar - Fall 2014

Posted on August 13, 2014, Authored by ,

Great Dane Pub & Brewing Company 2305 Sherman St, Wausau, WI Register by contacting Shannon Jacobson at 715.845.4336, 800.477.8050, or via email to sjacobson@ruderware.com Seating is limited, please register by September 23, 2014 Managing Employees in the Public Sector: A Dialogue on the Public Sector and Private Sector Models This seminar will include human resource managers from the public sector and private sector in a panel discussion about the management of public sector employees in our new era of heightened flexibility for addressing employee issues. Public sector managers enjoy a great deal more flexibility in managing employees and addressing employment situations. This panel discussion will focus on all of the different aspects of employee management including use of employee handbooks, methods for addressing performance through performance appraisals, handling employee discipline, and developing attractive employee benefits and working conditions. The panelists will discuss these and many other aspects of employee management in the public sector and how local governments can expand their efforts to be the most attractive place for individuals to work. Panelists include: Mr. Ed Reed, former Human Resource Director for Wood County Mr. Jon Krueger, Senior Vice President of Human Resources for Greenheck Fan Corporation, and former Human Resource Director for City of Marshfield; Other panelist TBD; Attorney Dean Dietrich, Ruder Ware Moderator: Attorney Kevin Terry, Ruder Ware Registration and Dinner 5:30 p.m. Introductions: 6:00 - 6:10 Panel Discussion: 6:10 p.m.

Attention Deficit Disorder - Disability?

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

I have always been concerned that attention deficit disorder would become a commonplace claim of a disability by employees, especially employees who are subject to disciplinary action. A recent decision from the 9th Circuit Court of Appeals gives employers some hope that attention deficit disorder (ADHD) will not automatically be considered a disability. In this decision, a police officer for a community in Oregon had several conflicts with his co-workers and was terminated for his behavior. The police officer alleged that he was terminated because of a disability, being his previous diagnosis of ADHD. Several physicians said the police officer was able to work and perform his duties without limitation or restriction. A jury found the city discriminated against the employee by terminating the employee for his inappropriate interactions and conflict with co-workers. The 9th Circuit Court of Appeals overturned the jury decision and made two important rulings. First, the Court held there was no evidence of substantial limitation in the major life activity of working because the evidence showed the police officer was successful in performing his duties and in fact, had been promoted to a sergeant position. There was evidence he had difficulty working with others in the workplace, but that did not rise to the level of a substantial limitation on his ability to work. The Court also found that interacting with others was a major life activity but a mere inability to get along with others did not rise to the level of interacting with others and constituting a major life activity. The evidence showed the police officer was able to engage in normal social interactions and therefore he was not considered disabled and unable to engage in the major life activity of interacting with others. In other words, the individual often acted like a "jerk," but that behavior did not rise to a level of being protected as a major life activity. This decision is not an all-encompassing answer to the question of whether attention deficit disorder will be considered a disability. An analysis will be required on each individual and how the disorder impacts the ability of the individual to be able to perform their duties in the workplace. The decision does direct employers to do a more thorough analysis of the work difficulties experienced by this type of employee before concluding that a disability exists for which an accommodation must be made.

Update: Watch Out for NLRB Activism

Posted on August 26, 2014, Authored by Dean R. Dietrich, Filed under Employment

I recently attended an employment law seminar sponsored by the State Bar of Wisconsin. One of the presenters was the Officer in Charge of Sub region 30 of the National Labor Relations Board. In a very candid and open discussion, the Officer in Charge made it very clear that the activism of the National Labor Relations Board will be continuing and employers should be wary of things coming down from the NLRB. In particular, he indicated the "quickie election" rules for the processing of a union election petition will likely be adopted by the Board in the near future. I previously wrote a blog (Quickie Election Rule Under Attack) about the administrative rule changes that will call for a very expedited process to consider a union election. One of the most important aspects of these anticipated new regulations is there will not be any hearing prior to an election vote to determine whether a particular employee or position is eligible to vote in the union election. Rather, the election will be held and the ballots from those employees will be held in abeyance and only counted if it is needed to determine the outcome of the election. Hearings on the challenging of eligibility for voting in an election were normally part of the process and required a hearing before the election was actually conducted. That process will change significantly and the election petition will be processed in a very expedited fashion because there will be no opportunity for a hearing on any issues other than whether an election cannot be held because of a "contract bar" (meaning that a labor union with an existing labor agreement already exists). The other discussion concerned the actions of the NLRB to review company personnel policies and provisions in employee handbooks. Many provisions are being subject to significant scrutiny by the NLRB through the unfair labor practice investigation process. Any provisions in the employee handbook that seem to discourage the right of an employee to talk about wages and working conditions will likely be declared unlawful and a violation of the employee Section 7 rights, including the right to engage in concerted activity relating to the workplace. A recent complaint was filed against Sears and K-Mart challenging some of the language in the employee handbooks of these two companies. Any language that would seem to discourage an employee from talking about workplace issues will be subject to scrutiny by the NLRB. Employers must be aware of these potential challenges because an unfair labor practice charge against the company could become a very effective rallying cry for a union organizing campaign. The presentation from the Officer in Charge was very open and candid but created a great deal of frustration over potential activism of the National Labor Relations Board. Employers of all sizes must be aware of this potential for intrusion by the NLRB into the day-to-day operations of a company.

Lazy Days of Summer are Gone - EEOC Files Lawsuits

Posted on August 29, 2014, Authored by Dean R. Dietrich, Filed under Employment

It appears the lazy days of summer have gone away. The Equal Employment Opportunity Commission (EEOC) recently filed two lawsuits showing its aggressive stance to "cleanup" its view of discrimination matters. One lawsuit involved discrimination under the Americans with Disabilities Act for being terminated when deciding not to participate in a wellness program. The other lawsuit involved allegations of religious discrimination. In the participation in wellness program lawsuit, a Wisconsin company was sued by the EEOC alleging the company terminated an employee for refusing to participate in a voluntary wellness program. The complaint alleges the company required an employee to pay the full health insurance premium cost and then subsequently fired the employee because the employee objected to questions being asked in a wellness program and refused to participate in the wellness program activities established by the company. The EEOC is alleging the wellness program was not voluntary and the termination of the employee was contrary to the requirements under the Americans with Disabilities Act as it relates to voluntary participation in a company established wellness program. The EEOC, in its press release, acknowledged the popularity of company-based wellness programs but reiterated its position that the wellness program must be completely voluntary so that an employee deciding not to participate is not adversely affected in any way. The EEOC is pursuing back wages and additional monetary damages for "mental anguish" and punitive damages for "malicious and reckless" conduct. In the religious discrimination case, a California company was sued by the EEOC alleging it violated the religious discrimination requirements of the Civil Rights Act when it terminated an employee who was unavailable for work because he had to attend Jehovah's Witness services and meetings. The employee was an elder in the Jehovah's Witness Church and had to attend services on Thursday evening and Sundays so he could not work on those days. The employee allegedly told the company, at the time of initial employment, that he needed to have time off on the upcoming weekend to attend a Jehovah's Witness convention and was terminated when he failed to report to work on those scheduled days. The EEOC is seeking a permanent injunction against the company for any discrimination against other employees for their religious beliefs and a court order forcing the company to enact policies and procedures that would prevent that type of discrimination. The EEOC is also seeking payment of back wages with compensatory and punitive damages against the company. It is easy to see the EEOC will be pursuing litigation to enforce its views of the protections given to employees under federal law against discriminatory conduct. Employers should take the time to review their policies and procedures to avoid any claim of discrimination by the EEOC.

Protecting Your Workplace May Be Getting Easier

Posted on August 27, 2014, Authored by Kevin J.T. Terry, Filed under Employment

On numerous occasions, we have received a phone call from a client that goes something like this: "An employee has reported to human resources that their (family member/friend/acquaintance) has been engaging in harassing behavior that the employee is concerned may continue into the workplace. What can we do to protect the employees (or students), our customers (or parents), and our business (or school district)?" Unfortunately, our suggested course of action always seemed to lack teeth. We could monitor the employee in the workplace and respond quickly to any threats, but there were not many proactive steps available to an institution in this scenario. Thanks to a recent Wisconsin Supreme Court decision, my advice may change moving forward. For the first time, Wisconsin law recognizes that institutions, not just individuals, are protected under Wisconsin's harassment injunction statute. In U.W. Board of Regents v. Decker, 2014 WI 68 (July 16, 2014), the university system sought and obtained a temporary restraining order to address the harassing conduct of a former student. The student appealed and argued that harassment injunctions cannot be granted to protect institutions, and his actions had a legitimate purpose: to protest the Board of Regent's activities. The Board of Regents argued that Wisconsin statutes define a "person" as including corporate and political bodies, and the Board of Regents is both. The supreme court agreed with the Board of Regents, rejecting Decker's arguments on this point. The conduct of Decker in this matter was extreme and clearly harassing. We are not suggesting that school districts and employers should immediately run to a judge to obtain a restraining order every time an employee or student feels harassed outside of work or school. However, it is important to recognize that this option may now exist. Many employers have felt a bit helpless and vulnerable to the harassing behavior of third parties in the past. Moving forward, employers must continue to utilize all available resources to protect its business, its employees, and its customers.

Wisconsin Act 10 Legal Challenges are Over - Managing the Local Government Workforce

Posted on August 13, 2014, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

The Wisconsin Supreme Court has ruled the provisions of Wisconsin Act 10 subject to legal challenge are constitutional and therefore binding on all local government employees and public sector unions. In addition, a recent challenge initiated by the Wisconsin Professional Police Association to the constitutionality of Act 10 has been dismissed by the Association. Local government employers now are free to exercise discretion in the managing of the local government workforce. Much of the management of the local government workforce occurs through employee handbooks adopted by the governing body. Local government officials now have the flexibility to adopt employment policies and procedures that are designed to make the local government unit a "preferred employer" within a specific geographic region. This requires local government officials to think outside the box and address many circumstances relating to the working conditions of government employees. Ruder Ware will be sponsoring a Local Government Seminar on September 30 that will address the flexibility granted to local governments under the Wisconsin Act 10 legislation and recent Court rulings. The summary of the Seminar can be found at Local Government Invitation. Municipal employers must now recognize the flexibility that has been given to them but also must exercise their discretion with caution.

Duty to Accommodate Pre-Existing Conditions of an Employee?

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

There has always been a question whether an employer is required to provide accommodations to an employee who has suffered an injury that impacts the employee's ability to work when the injury occurred before the employee was hired. These types of injuries are called pre-existing injuries or pre-existing conditions and many employers believe they do not have to accommodate an employee for a condition that occurred prior to commencing employment. A recent decision from the 7th Circuit Court of Appeals (which covers Wisconsin) held that the Company was required to accommodate an employee for an injury that occurred prior to employment. In this decision, the employee suffered from chronic back injuries caused by a previous workplace injury with another employer. The Company did not consider any request by the employee to stop performing certain work duties because they aggravated his chronic back problem. The employee was ultimately terminated and filed a complaint for discrimination based upon a disability and for retaliation because of terminating the employee while the employee was off of work due to the chronic back problem. At trial, the jury found for the employee and awarded a verdict of $115,000 in back pay, $100,000 in compensatory damages and $200,000 in punitive damages against the Company. The Company was found responsible for punitive damages because the Company did not follow its established procedure for handling employee accommodation requests. The important aspect of this decision however, is that the Company was held responsible for accommodating the injury/back problem of the employee even though the employee came to the job with that pre-existing back problem. Employers must be careful when reviewing the duty to accommodate an employee with a disability even if the disability results from an injury or medical problem experienced prior to employment with the Company.

Third Party Settlements in Worker's Compensation

Posted on August 1, 2014, Authored by Russell W. Wilson, Filed under Employment

When a worker's compensation insurance carrier settles a third party claim, the injured employee is bound by the settlement amount. The full story on the Wisconsin Supreme Court's decision announced on July 22 can be found here.