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Searching for Articles published in January 2015.
Found 15 Results.

What's Your Quid?

Posted on January 26, 2015, Authored by Ruder Ware Attorneys, Filed under Local Governments and School Districts

As labor law attorneys know, there are very few interest arbitration decisions being issued since Act 10 took effect in 2011. In fact, in the last thirteen months, there were only four such decisions. This is significant change from the "good old days” prior to Act 10 when very often there were several cases decided each month. This is primarily due to the fact that in Wisconsin only police, fire and transit unions have retained the right to go to interest arbitration when they are unable to reach a collective bargaining agreement. However, it is imperative to pay close attention to these new decisions. These decisions provide guidance for the changes in the law and how interest arbitrators are deciding cases. Significantly, it also helps municipalities be ready when preparing for and bargaining with their police, fire and transit unions.  The most recent interest arbitration case decision involves the City of Eau Claire and its firefighters. (According to the Wisconsin Employment Relations Commission, this decision will be “public” on its website in early February of 2015.) In that case, Arbitrator Mawhinney had to select between the two final offers submitted. Among other things, she decided the external comparables. She noted the parties had never litigated over their collective bargaining agreement and it had been “quite awhile since [the City’s] police went to arbitration.” Although the parties were in agreement following the hearing on sixteen comparables, the union still wanted to add Green Bay and Racine for comparable data analysis. In finding for the union on this issue, the arbitrator found that “the comparable pool is not set in stone.” Further, although “Green Bay looks a little heavy” in terms of population, the parties’ agreed upon list contained comparable cities that were small; thus, the addition of Green Bay and Racine, according to Mawhinney, will “balance” out the list. “Since the agreed upon list is so heavy with smaller comparables…it makes sense to add two larger comparables.” There was no reference in the decision over the duration that the parties had a bargaining history of using a list without the inclusion of Green Bay and Racine. On the issues of wages and health insurance premium contributions for a two year contract, the City offered a two percent wage increase each of the two years. It also offered that employees go from an 8% to 10% in premium contribution rate in the first year and from 10% to 13% in the second year. The union offered 2% on wages the first year, and a split 2%/2% in the second year (for a 6% wage total). As for health insurance, the union matched the city’s first year at 10%, but it would only offer 12% during the second year. Thus, the parties were 1% apart on premium contribution rates for both years. In selecting the union’s final offer, the arbitrator found that “the City offered nothing for a quid pro quo in its request for a difference in the health insurance employee contribution rate “and is a little on the low side [regarding comparables] on wages.” The arbitrator also noted that the police unit had not settled for the same period.  In light of this case, it is important for municipalities to be aware of their comparables and that this may change. It is equally important to know what kind of “quid” you are offering so, if litigation is necessary, your chances of winning at the hearing are maximized.

Working at Home May Not be a Reasonable Accommodation

Posted on January 8, 2015, Authored by Dean R. Dietrich, Filed under Employment

In May 2014, I wrote a blog indicating a federal court of appeals decision suggested that a permanent assignment to working at home may be a reasonable accommodation for an employee suffering from a disability.  Another federal court of appeals, the Seventh Circuit Court of Appeals (which covers Wisconsin), has taken a different view of working from home as a reasonable accommodation. In this decision, Taylor-Novotny v. Health Alliance Medical Plans, Inc. 7th Cir., No. 13-3652, November 26, 2014, the company had a policy that allowed employees to work from home on a temporary basis when suffering from a disability or a condition that prevented the employee from actually coming to the workplace. An employee suffering from a disability sought permanent permission to work from home because of her disability and to avoid termination for excessive tardiness and failure to follow procedures for reporting tardiness. The court of appeals held that this permanent request would not constitute a reasonable accommodation because of the company’s requirement that employees report to the workplace. The company had established attendance and reporting to work on time as an essential requirement of all positions in the company. The court of appeals held that a request for permanent assignment to work at home did not satisfy this essential requirement of the job and therefore, the employee was “not a qualified person with a disability” to warrant protection under the ADA. Working from home can certainly serve as an accommodation that must be provided by an employer depending upon the nature of the disability and the condition of the employee. We have always felt that working from home could be a temporary accommodation for a person suffering from a disability. We also felt it was not appropriate to have a permanent assignment to work at home. In fact, a federal court case from many years ago involving the University of Wisconsin System actually held that a permanent request to work from home was not appropriate. We now have another federal court case that supports that thinking. Reasonable accommodations are very hard to address. Employees want the type of accommodation they feel will best suit their condition or situation, but the company must be sensitive to the essential functions performed by that employee. This case lends more support to a reasoned company decision about the accommodation requested by an employee. 

EEOC Gains Upper Hand in Biometric Time Clock Religious Discrimination Case

Posted on January 22, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

Let’s face it, not all employees are saints—unfortunately, there will always be that one employee who brazenly decides to color outside of the lines. Recently, several clients have asked me for my opinion about biometric time clocks - in response to “buddy punching,” or falsification of time-cards and other electronic time-management records.  Biometric time clocks are becoming increasingly popular—I even found one available at Sam’s Club [which is one of my litmus tests of mainstream acceptance]. Biometric time clocks utilize biometric hand or fingerprint scanning technology to verify employee presence at work based upon each employee’s unique biological identifiers. “Buddy punching” problem solved, right? Well…not so fast. As I’ve shared with our clients, one risk of utilizing biometric technology, which once was purely theoretical, is the risk of religious discrimination. More specifically, we have long speculated that the use of biometric technology may conflict with employee religious beliefs and observances. Well, what once was theoretical is now reality. The EEOC sued Consol Energy, Inc. over its use of biometric technology in the workplace. According to court documents, one of Consol’s employees objected, based upon his Evangelical Christian beliefs, to the use of this biometric hand scanning technology to track time and attendance, and Consol allegedly failed to reasonably accommodate this employee’s religious beliefs, prompting the lawsuit.  The objecting employee suggested two alternatives to the use of biometric scanning in connection with his employment: (1) manual completion of time cards; or (2) use of a standard time clock. According to court documents, the EEOC asserts that Consol rejected these suggested solutions, even though it exempted other employees, who had missing fingers, from recording time and attendance through the biometric time clock. According to court records, Consol claimed that the employee’s suggested accommodations created an undue hardship on its business. The case went to trial. On, January 15, 2015, a jury returned a verdict in favor of the employee, and awarded compensatory damages of $150,000 [a copy of the verdict form is available here: EEOC v. Consol Energy]. The jury ultimately concluded that the employee possessed a sincerely held religious belief that conflicted with a work requirement [using the biometric time clock conflicted with his Evangelical Christian beliefs], that the employee informed Consol about his religious belief and the conflict between his religious beliefs and the company’s work rule, and that Consol failed to reasonably accommodate the employee. According to reports, Consol may be in the process of filing an appeal. Biometric time management technology is viewed by many as the newest [and best] solution to an old problem. It may be—but employers that utilize this technology must be mindful of the possibility of conflicting religious beliefs and anticipate possible accommodations. Our employment attorneys will continue to keep our own fingers on the pulse of this evolving area of law—we’ll keep you posted.

Are Local Right-To-Work Laws Legal: Recent Lawsuit Could Provide Definitive Answer

Posted on January 19, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

On January 14, 2015, a group of labor unions—led by the UAW and UFCW—filed suit against Hardin County, Kentucky, in response to a municipal “right-to-work” ordinance [a copy of the complaint is available here:  United Automobile Aerospace and Agricultural Implement Workers of America Local 3047]. Through the lawsuit, the unions allege that the National Labor Relations Act preempts [overrides and does not permit] local right-to-work measures. My colleague, Dean Dietrich, recently posted about so-called right-to-work laws—his post is available here: Indiana Supreme Court Holds Right-to-Work Law is Constitutional. However, as a refresher, right-to-work laws are, in simplest form, laws permitted under the NLRA that prevent companies from terminating the employment of employees who do not pay union dues. Unions routinely [and legally, consistent with the NLRA] negotiate collective bargaining agreements with so-called “union security clauses,” requiring all workers to pay union dues or lose their jobs. Right-to-work laws prohibit this type of arrangement. Approximately 24 states have passed right-to-work legislation into law—most recently, Indiana. This is not surprising, as there is no debate that the NLRA permits right-to-work laws at the “State and Territorial” level. There is also legal support for the proposition that local right-to-work measures, such as the ordinance enacted by Hardin County, Kentucky, are indeed “state” measures [the idea being that counties and cities are political subdivisions of states—and thus, counties, cities and states are one in the same].  However, there are only a couple of instances in which counties or cities have enacted right-to-work laws at the “local” level. In these rare instances, courts have not been kind to local right-to-work measures, and have stricken these local laws on various grounds. The Hardin County decision will certainly be worth watching, as the impact on labor-management relations is considerable and far-reaching. If the parties have the intestinal fortitude, this case could find its way to the Supreme Court of the United States. Our group of labor relations attorneys will follow this case closely—and will keep you posted.

NLRB Judge to Employer: Stated Reason for Terminating Employee Who Complained About Pot is Smokescreen

Posted on January 6, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

Recently, an administrative law judge (“ALJ”) for the NLRB concluded that a casino employer’s stated reason for terminating an employee (“Schramm”), who complained about the risks of inhaling second-hand marijuana smoke, were not genuine—and the termination of employment violated the NLRA. The case is Circus Circus Casinos, Inc., and is available here:  Circus Circus Casinos, Inc. This decision is an important reminder to both union and non-union employers that employee complaints often give rise to protection under the NLRA. In this case, Schramm, along with another coworker, complained about ingesting second-hand marijuana smoke while performing carpentry services within occupied casino hotel guest rooms. Management responded that the risk of testing positive for the presence of marijuana, if casino carpenters were tested pursuant to the procedure within the collective bargaining agreement, was extremely low and did not merit further action by management. Schramm challenged management—questioning management’s competency to offer an opinion he believed required a professional medical education. Management responded by suggesting that the casino employer would not have further need of Schramm’s services. However, nothing happened—and Schramm remained employed. Later, Schramm refused to sit for a respirator fitting at a local clinic—hoping to subsequently obtain an exemption due to anxiety issues. According to the company’s policy, an employee has the right to discuss the content of the respirator exam, pre-fitting questionnaire, with the physician administering the exam, before being tested. Upon refusing to sit for the fitting, Schramm was not afforded this opportunity. Nevertheless, the casino terminated Schramm’s employment as a result of his failure to submit to the respirator fitting. According to the ALJ: Schramm was engaged in protected activity [protected by the NLRA]. Employees who seek to improve wages, benefits, working hours, their physical environment, dress codes, assignments, responsibilities, and other similar employment-related items are dealing with conditions of their employment as set forth in Section 7 [of the NLRA]….[I] find that Schramm and [his coworker] were engaged in protected, concerted activity in seeking to improve their physical environment by determining whether exposure to second-hand marijuana smoke could affect their safety and whether it might affect the results of a drug test if an accident occurred while they were exposed to this smoke. The ALJ determined that Schramm’s complaint about second-hand marijuana smoke was one of several motivating factors in the casino’s decision to terminate his employment—which is sufficient to support a violation of the NLRA absent the casino’s ability to demonstrate that it would have terminated Schramm’s employment even in the absence of his complaint about second-hand marijuana smoke. The ALJ was not persuaded that the casino would have terminated Schramm’s employment in the absence of his complaint, because: (1) he was not afforded an opportunity to question the doctor administering the respirator fitting exam, per the policy; and (2) management suggested, in response to Schramm’s critical comments, that Schramm’s services might not be needed. Just like that—poof—the casino’s justification for the termination decision went up in smoke.  Accordingly, the ALJ concluded that the company’s stated justification for the termination decision was a pretext. Given that employees are increasingly raising NLRA violation claims on the heels of being fired, both union and non-union employers are strongly encouraged to consider whether the specific employee actions/behaviors underlying a particular decision to terminate employment is protected activity under the NLRA. If so, employers must conduct a thorough cost-benefit analysis before making any decision impacting continued employment. Pulling the trigger on a termination decision without conducting this scrutinizing analysis is a bigger gamble than a game of roulette.

Independent Contractor, Not Employee?

Posted on January 30, 2015, Authored by Dean R. Dietrich, Filed under Employment

There has been a lot of discussion about independent contractor status and initiatives by the Department of Labor to investigate whether a particular worker has been improperly classified as an independent contractor and not an employee of a company. The State of Wisconsin has signed on to cooperate directly with the Department of Labor in these type of investigations. Wisconsin employers should know their determinations of employee status/independent contractor status will now be subject to more intense review by the Department of Workforce Development in cooperation with the Department of Labor.  There are a number of tests that can be looked at to determine whether an individual worker is considered an employee of the company or an independent contractor providing services to the company. Many of the elements of independent contractor status fall under the “right to control” test. This test looks at whether the employer controls the hours of work and working conditions or the worker has the right to set hours of work and working conditions as well as provide his/her own tools for getting the work done. The focus of this test is to determine whether the worker has independent status to determine how best to do the job and when to do the job or whether the employer controls the many aspects of the job suggesting the worker is actually an employee of the company.  Another test focuses on the entrepreneurial aspects of the payments made to the worker. If the worker is paid for a job and is able to reap the benefits of his/her work plan and work activities, the worker will likely be considered an independent contractor. This is compared to a payment by the hour for work performed which closely suggests the worker is an employee of the company.  These are simple explanations about a very complex topic. Employers must understand the Wisconsin Department of Workforce Development will be very closely scrutinizing these situations where an individual worker is considered an independent contractor and not an employee of the company. Employers should take steps to fully investigate how they classify workers that provide services to the company.

Police Managers Teeter-Totter: Praise and Reprimands

Posted on January 22, 2015, Authored by Ruder Ware Attorneys, Filed under Local Governments and School Districts

“It’s always best to be consistent” and “maintain balance” are classic mainstays for advice in life. And like many things in life, such mainstays carry over into the workplace. I try to follow this advice when assisting my clients on a variety of topics, including in the practice areas of labor and employment law. This advice came into focus recently while I was reading a newspaper report of a municipal employer’s termination of one of its police officers. The media reported, and impliedly questioned, whether the officer was properly terminated given that there were numerous written commendations received relatively close in time prior to the event which led to the termination.  The law provides in most Wisconsin municipalities that the chief of protective service departments may take disciplinary action against a subordinate for infractions up to and including removal. Discipline includes a suspension, reduction in rank or removal from service. However, a disciplinary action may be challenged by the employee and reviewed by that municipality’s police and fire commission (PFC). A PFC applies seven statutory standards in determining whether the discipline was appropriate, including the standard of whether the discipline reasonably relates to the seriousness of the alleged violation and to the officer’s work record. In other words, does the punishment fit the alleged violation?  It was unclear from the referenced media report whether that officer’s punishment fit the alleged violation. There were many facts and considerations that went unreported by the media. Nonetheless, and more importantly, the news article brings into focus municipalities and their chiefs applying the above advice of being consistent and maintaining balance with respect to the management and discipline of their subordinates. In other words, give praise where praise is due, but also maintain a written record if there are problems. This is especially important in today’s national climate where in some municipalities officers have been recently perceived as not being appropriately disciplined when interacting with citizens, e.g., Ferguson, MO. If your municipality is considering disciplinary action of one of its police officers, deputies, or firefighters, or if your municipality would like to review its policies and procedures for both commendations and discipline, consider a careful legal review. It is always good to be prepared for questions over the management and potential discipline of protective service employees.

Lawsuit Challenges NLRB Rules On Quickie Election

Posted on January 13, 2015, Authored by Dean R. Dietrich, Filed under Employment

As we have previously discussed on this blog site, the National Labor Relations Board has published new election rules often described as the “quickie election” rules. A blog summarizing the rules can be found here. These rules are to take effect on April 14, 2015, but a legal challenge has been filed to seek overturning of these new election rules.  The U.S. Chamber of Commerce along with other employer associations, has filed suit challenging the legality of the new rules published by the National Labor Relations Board. This legal challenge focuses on allegations that the new rules deny employers their constitutional right to freedom of speech and freedom of commercial speech. The litigation has been filed in the federal district court in Washington D.C.  The Chamber of Commerce has had success in the past challenging various rules adopted by the NLRB on the grounds that the NLRB was over-reaching in the wording of the rule and violating the constitutional rights of employers. Some of those challenges focused on the lack of authority of the NLRB which is not an issue to be litigated in this case. There are still questions regarding the appropriateness of the NLRB rule and the breadth of the rule but whether this legal challenge will cause the rule to be rescinded by the NLRB or overturned by the federal court remains to be seen.  Employers should be careful to not rely upon the past successes and assume the “quickie election” rule will not be implemented in April. Steps should be taken now by companies to ensure they are prepared in the event the election rules apply and a union organizing effort is initiated. Companies will not have the opportunity to address the myriad of issues that could arise in a union election proceeding if these new rules are in effect.

Dean Dietrich Receives Speaker of the Year Award from United Way of Marathon County

Posted on January 21, 2015, Authored by ,

Attorney Dean Dietrich was recently awarded the Speaker of the Year Award from the United Way of Marathon County.  Visit our Community Blog to see what the organization had to say about Dean and the award. 

Employer’s Failure to Accommodate Needle Phobia Leads to 2.6 Million Dollar ADA Verdict

Posted on January 26, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

Last week, a federal jury in an Americans with Disabilities Act case entered a 2.6 million dollar plaintiff’s verdict in favor of a former Rite Aid Corporation pharmacist who Rite Aid allegedly discharged in response to his inability to administer flu shots. According to court records, the former Rite Aid pharmacist suffered from trypanophobia, which is an extreme fear of needles and procedures involving needles [drawing of blood, receiving and witnessing injections, observing medical procedures]. This phobia is officially recognized in the American Psychiatric Association Diagnostics and Statistical Manual of Health Disorders, 4th Edition (DSM – IV). According to court records, Rite Aid’s former pharmacist requested an accommodation in response to the conflict between his trypanophobia and Rite Aid’s mandatory immunization training for pharmacists [he allegedly exhibited symptoms of diaphoresis, hypotension, pallor and anxiety as a result of his trypanophobia]. Allegedly, Rite Aid refused to accommodate the pharmacist’s trypanophobia and terminated his employment—which precipitated his federal ADA lawsuit. Following trial, the jury concluded that trypanophobia is a disability for ADA purposes, that the pharmacist requested a reasonable accommodation, that Rite Aid failed to demonstrate that accommodating the pharmacist’s trypanophobia created an “undue hardship,” and that the pharmacist was entitled to 2.6 million dollars in damages [a copy of the verdict is available here: Rite Aid Jury Verdict]. Rite Aid may choose to appeal this decision. This case is a good reminder to employers that mental disorders must be taken seriously in the context of requests for accommodations. In my experience, some employers outright dismiss, or significantly discount, the validity of employee mental impairments in the context of claimed job-related limitations.  Unlike many physical impairments, mental impairments often cannot be satisfactorily verified by laypersons—which often leads to unfounded suspicion and ill-conceived strategic decisions.  Employers need not fear this verdict [although I understand there is a phobia for that — liticaphobia is the fear of lawsuits], but certainly should appreciate the cautionary nature of the decision. Employers are encouraged to lean on qualified medical and legal professionals when faced with the uncertainty that often surrounds an employee’s claimed mental impairment and need for workplace accommodation. 

Unsigned Legislative Memo: Drastic Changes Planned for Worker’s Compensation?

Posted on January 27, 2015, Authored by Russell W. Wilson, Filed under Employment

Senator Jon Erpenbach’s (D-Madison) office released an unsigned memorandum addressed to “WC Stakeholders.” The memorandum is dated January 15, 2015, and its subject line reads “WC Reorganization.” While the memorandum is unsigned, it is clear that the author is an administrator within the Worker’s Compensation Division of the Department of Workforce Development (DWD). The author states that he or she “learned that the Governor will include a proposal in his 2015-17 budget bill to remove the Division of Worker’s Compensation from the Department of Workforce Development.” There is no doubt as to the point of the memorandum: “In the final analysis, Wisconsin has a superior WC system. No credible explanation has been given as to why a Division that is wholly program revenue funded should be targeted for drastic changes that will clearly have a negative impact on our stakeholders.” As one who has represented the employer’s side in worker’s compensation cases for thirty six years, I find some of the details listed in the memorandum alarming. For instance, under one reorganization scenario, the position of Duty Judge would be eliminated. Having a Duty Judge available to the lawyers for the employee and the employer to clarify a wide variety of practical issues and questions that arise in the hearing and settlement process is invaluable. In my experience those Administrative Law Judges serving the role of Duty Judge have been readily available, responsive, evenhanded, and immensely helpful to processing cases and settlements. To eliminate the position of Duty Judge seems to me to be an assault on the concept of institutional knowledge and memory. Another service the memorandum says would be eliminated is computation of permanent and total disability (“PTD”) calculations. As Wisconsin’s workforce ages and claims for permanent and total disability increase, I think it is in the interest of employers and employees to have a measure of certainty and predictability as to how claims for PTD are valued. A number of variable factors must be taken into account, one of which in many cases is the calculation of the Social Security Disability “reverse offset.” The reverse offset is re-determined on a triennial basis. It is of great service to lawyers on both sides of a case to have the DWD’s reverse offset calculation. It is also beneficial to have the DWD’s standard present value discount rate in place. In my view, the elimination of the PTD calculation service may lead to widely divergent calculations, making it more difficult, if not impossible, to settle cases that are already difficult to settle. I suspect that wide divergence in case valuation will lead to more hearings on cases that ought to be settled. I think the two concerns discussed above apply evenly to the employee side and the employer side. I find the next detail from the memorandum especially alarming for the employer side that I represent. According to the memorandum: “Elimination of remote hearing locations. This will supposedly save money. It may result in hearings being held only in Milwaukee and Madison. This would require extensive travel for many of WC stakeholders.” Holding our clients’ hearings in Milwaukee or Madison would disrupt their operations and impose an enormous additional cost. As I look out the window of our office building here in the quaint “remote location” known as Wausau, I can see the building not two blocks away where WC hearings are held. Even so, our clients must send their HR managers, worker’s compensation managers, production staff, safety personnel, and any number of other witnesses often from considerable distance from Wausau. There being no discovery in worker’s compensation, the employer that is well-prepared for hearing must typically bring everyone to the hearing who might need to testify. If “remote hearing locations” are eliminated, many employers are likely to be “held up” for settlement based on legal expense. Those are the points in the memorandum that alarm me the most, but you can draw your own conclusion. Click here for the memorandum

Micro-Union Ruling is Start to Lengthy Legal Process

Posted on January 14, 2015, Authored by Dean R. Dietrich, Filed under Employment

The National Labor Relations Board has confirmed an Administrative Law Judge (ALJ) decision that Macys, Inc. is obligated to bargain with a small bargaining unit of cosmetic and fragrance sales persons instead of holding that these employees have a community of interest with other Macys, Inc. employees and should not be in a separate (small) bargaining unit. This decision is the next step in a legal journey to review the policy of the NLRB about union elections under its new majority that minor bargaining units or what some call “sub units” of an employer may be recognized for collective bargaining purposes. The concept is often called “micro-unions” and is based upon an initiative by unions to organize small groups of employees first and then pursue representation of a large group of employees after “getting their foot in the door.” The recent ruling by the NLRB sets the stage for legal challenges as to whether or not the concept of a “micro-union” is appropriate. The NLRB has always operated under a “community of interest” standard which meant that the bargaining unit should be comprised of all employees that had a similar community of interest. This allowed for the expansion of a potential bargaining unit in some instances, but also affected the majority vote needed by the union to be recognized as a bargaining representative for those employees. The concept of a “micro-union” will now be used by unions to start the union organizing process with a small group and then use that opportunity to expand to a larger group at a later time. This is the start of a legal process that may run several years. Employers must recognize that a micro-union election petition may be coming in the future although, it will be a lengthy period of time before the courts determine what standard should be applied to those type of union recognition petitions.

And Now There are Five

Posted on January 29, 2015, Authored by Dean R. Dietrich, Filed under Employment

The United States Senate has confirmed Lauren McFerran as the fifth member of the National Labor Relations Board. The Board now stands fully staffed with a majority being labeled pro-employee. This means “beware” for employers. The confirmation of Lauren McFerran as Obama’s appointment to the National Labor Relations Board sets the stage for more pro-union and pro-employee decisions from the Board. As we have blogged over the past twelve months, a number of NLRB decisions have been issued recognizing an employee’s Section 7 rights, particularly in the area of speech and use of social media to complain about working conditions. Other Board decisions have struck down employer policies that restricted the speech and activities of employees or supposedly, discouraged employees, from engaging in union organizing activities. We can anticipate these types of decisions will continue to be issued by the Board. Perhaps the two most important Board actions that will affect employers in the near future are: The Purple Communications Decision which held that employees have the right to use an employer e-mail system for union organizing activities and that limitations on the use of a business e-mail system can only be focused on conduct that could impact the security of the e-mail system; The new “quickie” election regulations that will take effect in April and require employers to react very swiftly to any union election petition filed to organize a large group or small group of employees. Employers will have a very limited time to communicate its position that a union is not necessary in the workplace. These actions by the NLRB may be subject to further legal challenge but have the potential to significantly impact the workplace environment. Employers must be very careful to recognize and understand the need to be sensitive to workplace communications and employee activity.

United Way of Marathon County Selects Dean Dietrich as 2014 Speaker of the Year

Posted on January 21, 2015, Authored by , Filed under Community

United Way’s Speaker’s Bureau is an important part of our their mission to educate people about the priority issues the local chapter is working on. Dean has been a tireless representative of the Early Years Coalition. In the words of United Way, “One of the best practices that many of our top companies use to improve their campaigns and help their employees understand the impact of United Way is to bring in a speaker from United Way’s Speaker’s Bureau. You’ll see the names of this year’s speakers in your program and on the screen. From time to time we have a speaker who just really stands out from the rest. This year’s Speaker of the Year did more than 10 presentations… and if you attended one of them, I’m sure he left an impression. He is an articulate, passionate advocate for children and quality early childhood programming in our community. I’m going to quote him here…..”In the future, when people hear the words Marathon County, I want them to think…. That’s the best place in the world to raise kids.” And he’s working tirelessly to see that happen. We’re proud to name Dean Dietrich as our 2014 Speaker of the Year.” 

Paying Overtime to Managers in 2015?

Posted on January 20, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

We are anticipating the Department of Labor will propose new regulations governing the payment of overtime to employees under the Fair Labor Standards Act. These new regulations, originally promised in November of 2014, will likely change the tests for determining whether or not an employee is exempt from the overtime pay requirements. The result of these new regulations may mean that a number of management-type employees will no longer qualify as exempt and will be subject to overtime pay for work over 40 hours in a week. While we have not seen the proposed regulations (and they will likely first be issued in February), there are a number of likely changes that are being predicted. The changes include: A substantial increase in the minimum salary amount that must be paid for an employee to be considered exempt from the overtime pay requirements. The current amount is $455 per week, that may be adjusted to as high as $970 per week which would mean the employee would have to receive annual compensation of $50,500. Revision to the rule setting how often the employee must perform the exempt duties (as an executive, administrative or professional employee) with the likelihood that the employee will be required to engage in the exempt duties for at least 50 percent of the time worked. Modification to the duties requirement for the three classifications to make it harder to show that an employee is actually performing duties that would qualify the employee as an administrative, executive or professional employee.  If some of these changes take place, employers will have a far more difficult time proving that an employee is exempt from overtime pay requirements. This could have a substantial impact on employee costs and profit margins. Companies will need to be very careful in determining the exempt status of employees to avoid lawsuits claiming the requirement of additional overtime pay. As the new regulations unfold, Ruder Ware will keep you advised on how to view compliance with the changes in the FLSA regulations.