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Searching for Articles published in April 2015.
Found 8 Results.

Federal Court Says Working From Home is Not Automatic Accommodation

Posted on April 15, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the Sixth Circuit Court of Appeals held that the Equal Employment Opportunity Commission failed in its claim that Ford Motor Company violated the Americans With Disabilities Act by failing to accommodate an employee with irritable bowel syndrome when the employee requested to work from home on four days of the work week.  The Court of Appeals held that Ford Motor Company did not violate the Americans With Disabilities Act when it refused to allow an employee to work from home on a regular and routine basis. The employee suffered from irritable bowel syndrome and found it difficult to come to work and interact with people in the workplace. Ford Motor Company did not honor the employee’s request to work from home four out of five days of the week arguing the job of Resale Buyer required on-site attendance as part of essential functions of the job. The employee tried to show working from home would be acceptable because other employees were allowed to work at home but on a less frequent basis. The Court of Appeals ruled en banc (meaning all Justices participated) that it was not a reasonable accommodation to allow the employee to work at home as requested. The majority of the Justices said the Court should not give blind deference to the employer’s judgment on what is a reasonable accommodation but will grant summary judgment when the employer’s judgment regarding essential job duties is “job-related, uniformly enforced and consistent with business necessity.”  This is a victory for employers because the Court acknowledges judgment made by a company as to what is a reasonable accommodation is something that must be given consideration by the Court if it is reasonable and consistent with business necessity. Employers must take care to make reasonable accommodation decisions on a case-by-case basis and provide rationale for the business reason for its decision.

Local Government Seminar - Spring 2015

Posted on April 30, 2015, Authored by ,

Holiday Inn - Rothschild 1000 Imperial Ave. Rothschild, WI  Register by calling Shannon Jacobson at 715.845.4336, or by email to sjacobson@ruderware.com Ruder Ware is sponsoring its Spring Local Government Seminar on April 30, 2015.  New Format:  Divided into two parts, a session before dinner is designed for experienced officials, while a session following dinner is designed for newly elected officials.  We encourage both groups to attend the dinner and networking. The new format is to provide opportunities for both experienced local government administrators and newly elected officials to gain insights regarding local government law and how to effectively manage local government jurisdiction. Program:

Federal Court Applies Worker’s Compensation Exclusive Remedy to Asbestos Secondary Exposure Lawsuit

Posted on April 20, 2015, Authored by Russell W. Wilson, Filed under Employment

Plaintiffs in asbestos personal injury and wrongful death lawsuits often attempt to circumvent the exclusive remedy of worker’s compensation. The federal district court for the Western District of Wisconsin has recently applied Wisconsin’s exclusive remedy provision to dismiss a Wisconsin employer from an asbestos lawsuit brought by an employee. The case is Boyer v. Weyerhauser Company, et al., 39 F. Supp.3d 1036 (issued Aug. 22, 2014; reconsideration in part Nov. 4, 2014).  Milton Boyer’s complaint alleged that in 1973 he began work for Weyerhauser at its Marshfield plant where asbestos fireproofing products were manufactured and products containing asbestos were used in the manufacturing process. The complaint was drafted so as to circumvent Wisconsin’s exclusive remedy provision of worker’s compensation. For example, the complaint alleged that asbestos fibers reached Mr. Boyer’s home and auto, as well as the plant’s lunchroom and other locations where no work-related activities were conducted. The complaint alleged that the fibers were transported from the production area on worker clothing, personal effects, skin, and hair. Weyerhauser moved to dismiss the complaint on the theory that the allegations of exposure to asbestos fibers outside the plant manufacturing area could not overcome the fundamental gist of the complaint:  that exposure to asbestos fibers occurred in the course of employment and arising out of employment. The court ruled in favor of Weyerhauser and dismissed Boyer’s complaint as to Weyerhauser with prejudice. In its analysis the court summarily rejected the “dual persona” exception to the defense of exclusive remedy. Rather, the court found that the complaint clearly alleged that Boyer’s exposure to asbestos fibers occurred while in the course of his employment (i.e. the time, place, and circumstances of employment) and that the exposure arose out of his employment under the zone of special danger doctrine (i.e. the causal origin of the injury). The court relied on established Wisconsin case law, but it also reviewed case law outside of Wisconsin, notably Silkwood v. Kerr-Magee Corp., 667 F.2d 908 (10th Cir.1981), rev’d on other grounds, 464 U.S. 238 (1984). In that case an employee at the defendant’s nuclear fuel processing plant won a judgment at the district court level for radiation from plutonium found at her apartment. The Tenth Circuit Court of Appeals, however, applied Oklahoma’s exclusive remedy provision of worker’s compensation, noting that all of the plutonium to which the employee was exposed originated from her place of employment. Although the Boyer decision of the federal court in the Western District of Wisconsin is not binding (i.e., precedential) in Wisconsin state courts, the decision is highly persuasive as it is based on well-settled Wisconsin law. This decision might be persuasive in cases brought in jurisdictions outside Wisconsin depending upon the specific allegations. Click here for a link to a copy of the Boyer decision.

Presidential Veto = Quickie Election Rules

Posted on April 1, 2015, Authored by Dean R. Dietrich, Filed under Employment

President Obama has vetoed the legislation passed by Congress that would prevent the implementation of the quickie election rules authored by the National Labor Relations Board. These new rules expedite the union representation election process and eliminate the right of an employer to engage in an effective campaign to convince employees that a union is not necessary at their worksite. We have blogged on different occasions about this election rule that becomes effective April 14, 2015. See these blogs: Are Quickie Elections Coming in 2014? (December 16, 2013) Happy New Year? (December 31, 2013) 25 Days or Less (February 18, 2014) Vote Now and be Excluded Later (February 20, 2014) Turn Over the Voter List - You Have No Choice (February 21, 2014) “Quickie Election” has First Hearing (March 10, 2014) “Quickie Election” Rule Under Attack (April 1, 2014)  Congress passed legislation to block the implementation of these new rules that address the procedures for filing a petition for union representation and the processing of that petition. Legal challenges have been brought in Texas and Washington D.C. and it is not clear whether those legal challenges will result in a temporary judicial order blocking the implementation of these new rules. If that does not occur, employers must be very careful because unions can file a petition to seek to represent employees of the company and the petition will be processed very quickly with little opportunity for an employer to engage in an anti-union campaign with its employees. Many employers have developed a campaign that they would roll-out if needed to ensure employees know the company does not want to have its employees represented by a union. We will have to wait to see if the litigation causes the rules to be suspended or whether they will become effective on April 14. Stay tuned.

Attorney Aric Burch Joins Ruder Ware

Posted on April 22, 2015, Authored by ,

Ruder Ware is pleased to announce the addition of Aric Burch to our Wausau attorney team.  Aric advises individuals and business owners in all aspects of personal estate and business planning. As part of his practice, Aric facilitates the formation, operation, and growth of closely held businesses. As an estate planner, Aric is a skillful listener and has particular talent drafting wills and estate plans that accurately capture a client's life plan while maximizing tax saving opportunities. Aric is also actively engaged in the post death administration of trusts and the probate of assets being transferred by wills.

Woodchucks Hit Homerun with Expansion Plans

Posted on April 16, 2015, Authored by , Filed under Community

The Wisconsin Woodchucks announced plans to implement phase two of Wausau Athletic Park’s renovations at a press conference today. The $3M project includes a complete reconstruction of the third base grandstands and sports deck area as well as a state-of-the-art kitchen, over 200 reserved seats, and new restroom facilities. Jamie Schaefer, COO at Ruder Ware, attended the press conference. A lifelong baseball fan, Schaefer serves as a member of the Woodchuck’s Advisory Board.

“Waters of the United States”: Something More Than Actually Navigable Waters

Posted on April 29, 2015, Authored by Russell W. Wilson,

The joint initiative of the United States Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (“Corps”) to define the “waters of the United States” is the result of three U.S. Supreme Court cases that develop the “significant nexus” test of jurisdiction under the Clean Water Act (“CWA”). This article discusses the case that defined one end of the spectrum ­- the one in which all nine justices agreed that the “waters of the United States” means something beyond traditionally navigable waters.  In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) Riverside Bayview Homes, Inc. (“Bayview”) was a developer that planned to build a housing project in a wetland that extended to a navigable waterway, Black Creek, which flows into Lake St. Claire in Michigan. Bayview placed fill materials in the wetland without having been issued a permit by the Corps. The Corps sued Bayview. A unanimous supreme court held that the jurisdiction of the CWA extends to wetlands that are adjacent to traditionally navigable waters. The decision, authored by Justice White, notes that in promulgating regulations so as to implement congressional intent, “the Corps must necessarily choose some point at which the water ends and land begins.” Defining that point is “no easy task.” The court observes that “between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs - in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land.”  The decision notes that where “waters” end is “far from obvious.” The Court looked to the purpose of the Federal Water Pollution Control Act Amendments of 1972:  “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The objective of the 1972 amendments “incorporated a broad, systemic view of the goal of maintaining and improving water quality.” The Court observes that Congress intended that aquatic ecosystems be protected, which requires broad federal authority because “[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source.” The Corps had determined in its regulations that wetlands adjacent to navigable waters play a key role in protecting and enhancing water quality. “The regulation of activities that cause water pollution cannot rely on . . . artificial lines . . . but must focus on all waters that together form the entire aquatic system. Water moves in hydrologic cycles, and the pollution of this part of the aquatic system, regardless of whether it is above or below an ordinary high water mark, or mean high tide line, will affect the water quality of the other waters within that aquatic system. For this reason, the landward limit of Federal jurisdiction under Section 404 must include any adjacent wetlands that form the border of or are in reasonable proximity to other waters of the United States, as these wetlands are part of this aquatic system.” The Supreme Court held that the Corps’ regulations were reasonable in light of the purpose of the Clean Water Act.  Accordingly, the Court interpreted the jurisdiction of the Clean Water Act to extend to wetlands that are adjacent to navigable waters. The court acknowledges that the Corps had made an “ecological judgment about the relationship between waters and their adjacent wetlands” as providing “an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.” The regulations recognize that such wetlands may filter and purify water that drains into adjacent water bodies; they may slow the flow of runoff and thereby prevent erosion and flooding; they may serve important biological functions “including food chain production, general habitat, and nesting, spawning, rearing and resting sites for aquatic . . . species.” The Corps’ regulations had concluded that wetlands adjacent to navigable waters may function as integral parts of the aquatic system “even when moisture creating the wetlands does not find its source in the adjacent bodies of water.” This article is part of a series exploring the "waters of the United States".

New Day for Union Representation Elections

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

Today is the day that the new “quickie election” regulations take effect. As of writing this blog, we have not heard of any legal challenge that has successfully stopped the new regulations from being implemented. Under the new regulations, a union representation election petition will be placed on a fast track for processing by the National Labor Relations Board. Employers will be required to respond immediately to any election petition filed by a union and will be given little opportunity to challenge which employees would be considered eligible to vote in the election.  General counsel for the National Labor Relations Board issued a Guidance Memorandum about the new election rules last week. This Guidance can be found at www.nlrb.gov/what-we-do/conduct-elections. Every employer that is subject to a potential union organizing campaign should be aware of these new regulations and recognize the potential for a very quick process leading to a union election vote. Employers may not be able to provide legal challenges to who would be eligible to vote in a union election and have to wait until after the election is conducted before determining whether certain employees are supervisors or managers that are not eligible to vote for union representation.