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Searching for Articles published in June 2015.
Found 7 Results.

I Hate my Boss - Disability?

A recent decision by an appellate court in California held that the inability of an employee to work with a particular supervisor because of anxiety and stress caused by oversight from the supervisor was not a disability under California Disability Discrimination Law.  As a result, the company did not discriminate against an employee who was terminated for a number of performance reasons even though her physician diagnosed the employee as having “adjustment disorder with anxiety.”  In this case, the employee alleged she suffered from a disability that was the result of her inability to work under particular supervisors because of the anxiety and stress created by the standard oversight of her job performance by these supervisors.  The California Appellate Court found that this did not qualify as a disability even though her physician identified her condition as an adjustment disorder. The employer did give the employee several months off to address her anxiety, but then terminated her employment when she was unable to produce medical information that showed she was disabled and unable to work in her current employment setting.  The California Court found that the employee did not suffer from a commonly recognized medical disability and therefore did not meet the first requirement to prove a disability discrimination case – that she suffered from a disability that impacted her ability to work. This is a good decision for employers because employees often claim their supervisor is mistreating them or being too aggressive in their supervision of the employee’s performance as compared to the supervision of other employees.  An employee making a claim like this must have very clear documented medical information; however, employers may want to consider granting some time off as a way to show good-faith consideration of the problems experienced by the employee.

Cucumber Farm in a Pickle: Farm’s Classification of Migrant Workers as Independent Contractors Violates Wage and Hour Law

Posted on June 29, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

Recently, a federal appeals court determined that a cucumber farm violated the Fair Labor Standards Act when it classified its migrant laborers as independent contractors instead of employees, and failed to pay them the applicable minimum wage.  The case is Perez v. D. Howes, LLC, No. 14-2026, --- F.3d ----, 2015 WL 3833529 (6th Cir. 2015).  Through the opinion, the Court affirmed a lower court ruling, which held that the farm’s pickling cucumber harvesters were employees for purposes of the FLSA—contrary to the Appeals Court’s previous decision in an unrelated case—in which it held that pickling cucumber harvesters were properly characterized as independent contractors.  The Court adopted the lower court’s reasoning in connection with the independent contractor v. employee analysis.  That reasoning—which focuses on whether “the worker is economically dependent upon the alleged employer or is instead in business for himself”—emphasizes the following factors, none of which is outcome determinative of employee status standing alone: The degree of permanency and duration of the relationship between the parties; The degree of skill required for rendering the services; The worker’s investment in equipment or materials required for the task; The worker’s opportunity for profit or loss depending on his skill; The nature and degree of the alleged employer’s control over the worker’s performance; and The extent to which the services rendered are an integral part of the alleged employer’s business. In the D. Howes, LLC case, the facts indicated that the migrant agricultural laborers had very little entrepreneurial discretion in terms of the farming operation and, in large part, were provided with the equipment and instrumentalities needed to perform the cucumber harvest.  On these facts, applying the above factors, the Court concluded that the harvesters were employees for purposes of minimum wage payments.  More specifically, the Court determined: (1) [permanency factor] the cucumber harvesters only seasonally labored for 45 days, and exclusively worked for the farm—but this fact didn’t weigh in favor of employee status or independent-contractor status; (2)[degree of skill factor] pickle harvesting didn’t, in this case, require special skills, as the farm, and not the workers, was in charge of irrigation and application of fertilizer and insecticides—thus, this factor weighed in favor of employee status; (3)[worker investment factor] the farm’s investment in the operation dwarfed that of the workers; workers purchased gloves and wheelbarrows—the farm purchased everything else, including seeds, fertilizer, equipment, etc.—this factor weighed in favor of employee status; (4)[profit or loss factor] workers had no say in negotiation for the price of the cucumbers, did not manage the fields and had no opportunity to suffer a loss if the crop was bad—this factor weighed in favor of employee status; (5) [control factor]  the farm determined whether irrigation and insecticide was needed and workers had no autonomy with respect to particular parcels of land harvested or the timing of the harvest—this factor weighed in favor of employee status; and (6) [entrepreneurial independence factor] 84% of the farm’s business was derived from pickle farming—thus, the farm could not reasonably take the position that cucumber harvesting was not integral to its business, and that the harvesters were independent businesses—this factor weighed in favor of employee status. The above analysis is commonly applied in cases governing agricultural labor.  This case does not give rise to a novel change in the law—but serves as a good reminder to agricultural businesses to look beyond labels and conventional wisdom in connection with whether workers are truly employees for wage and hour purposes.  This analysis of “entrepreneurial risk” is becoming more common in other settings—and has been given considerable weight in establishing employer/employee relationships.  The risks of employee misclassification are significant, including back pay, double damages and attorneys’ fees and costs.   

Quickie Election Rules Increase Union Activity

The NLRB “quickie election” rules have been in effect for the past six weeks.  As predicted, the implementation of these new rules has resulted in a significant increase in union election petitions.  Under these new rules, the procedure to move from the filing of a petition to an actual election amongst employees takes approximately three weeks and employers are severely hampered in their ability to present information and speak against the union organizing campaign.  For the 4-week period March 13 to April 13, there were 212 union election petitions filed with the National Labor Relations Board.  In the period April 14 to May 14, there were 280 petitions filed – showing a 32% increase in union election petitions.  This shows a significant advantage perceived by unions because of the shortening of the union election process.  Under the “quickie election” process, an employer must file a position statement within days of receiving a union election petition from the NLRB.  Any challenges to the employees eligible to vote in the election will be delayed until after the election is held to determine whether or not the challenged positions really have an effect on the results of the election.  A recent court challenge to these election rules in Texas was unsuccessful in halting the continued implementation of these procedures.  A legal challenge is still pending in federal court in Washington D.C. Employers have very little opportunity to respond to an election petition and should consider developing a model election campaign in order to be prepared if a petition is filed under these new election procedures.

U.S. Supreme Court Rules in King v. Burwell – Subsidies Available in All States

Posted on June 25, 2015, Authored by Mary Ellen Schill
Mary Ellen Schill
Attorney
Wausau Office
, Filed under Employment

The United States Supreme Court just held in the King v. Burwell case that taxpayers in states that have not established their own exchange are still entitled to the premium assistance subsidies. Read more about the decision here.

U.S. Supreme Court rules in King v. Burwell – Subsidies Available in All States

Posted on June 25, 2015, Authored by Mary Ellen Schill
Mary Ellen Schill
Attorney
Wausau Office
,

The United States Supreme Court just held in the King v. Burwell case that taxpayers in states which have not established their own exchange are still entitled to the premium assistance subsidies.  The challengers in the Burwell case had argued that the language in the Affordable Care Act which authorized subsidies was limited to states that had established their own exchange, and not available to taxpayers in states that had adopted the federal exchange, as Wisconsin had done.  In a 6-3 decision, the Court found that while the argument that the plain meaning of the statute would seem to result in the opposite finding, “[t]he Affordable Care Act contains more than a few examples of inartful drafting” and “[i]n this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”  So, the chaos which would have resulted from the Court’s rejection of subsidies for states using the federal exchange has been avoided.  Wisconsin taxpayers can keep their subsidies, and Wisconsin employers have lost an opportunity to avoid shared responsibility penalties in their entirety (if subsidies for Wisconsin employees had been eliminated).

Accommodating Religious Practices – Use Your “Best Guess”

The United States Supreme Court, in the recent Abercrombie & Fitch decision, has said employers must use their best guess to determine whether or not an employee (or applicant) wants or needs an accommodation for a legitimate religious belief.  In this decision, the Supreme Court held that the clothing company violated the religious discrimination law when it refused to employ an individual who attended an interview wearing a hijab.  The Court held that the applicant did not have to request some type of accommodation to allow her to wear the religious clothing during work but rather the employer had to guess whether the applicant was going to make that request and could not discriminate because of the potential of a need to accommodate her religious belief.  What is disappointing about this case is the conclusion that the employer must make an assumption an accommodation is necessary instead of requiring the employee/applicant to make a request known.  The Court held that there was no duty to communicate a request for an accommodation in this case under the religious discrimination law.  There still may be a duty to communicate a request for an accommodation under other laws such as the Americans with Disabilities Act.  Here the employer must assume there is a need for an accommodation and may not make an employment decision based upon the potential that an employee will ask for an accommodation.  This case may not be so troublesome because the religious garb worn by the applicant was obvious.  Other cases may be far more difficult. For example, if an employee is not able to work certain hours because of a religious belief that was unknown at the time of application for employment, that could cause an employer to hire an employee who is unable to work the regular hours required of a position. Employers must be very careful about the hiring process.  The Supreme Court has said that employers may have a duty to assume an accommodation is necessary for an applicant’s religious beliefs.

Disclosing Notes Under Wisconsin’s Public Records Law

Posted on June 15, 2015, Authored by Ruder Ware Attorneys, Filed under Local Governments and School Districts

The Wisconsin Court of Appeals recently clarified when notes are subject to disclosure under Wisconsin’s Public Records law.  In The Voice of Wisconsin Rapids, LLC, et. al. v. Wisconsin Public School District, et. al., 2014 AP 2015 (Ct. App., 2015), the appellate court affirmed the circuit court’s finding that employee notes from a school district’s investigation regarding alleged impropriety within the school’s athletic program are not records subject to disclosure in a public records request under Wisconsin Statute. There is a presumption that public records shall be open to the public.  §19.31, Wis. Stat.  The term “record” is broadly defined and includes any material on which written or printed information is made or is being kept by a public authority, including handwritten data.  §19.32(2), Wis. Stat.   However, the statute also states that “record” does not include notes prepared by the originator for personal use.  §19.32(2), Wis. Stat.  The term “notes” is not otherwise clearly or independently defined by statute. In this case, the Court of Appeals inspected the sealed records and determined the notes in question were prepared by school district employees as part of their own personal note-taking process before and after interviews they conducted as part of the investigation.  The court characterized these as mostly handwritten and that they appeared to reflect hurried, fragmentary, and informal writing.  The court stated that the term “notes” is not defined in the statute and, therefore, gave it a very broad meaning.  It likened the term to the ordinary meaning of notes, including an informal record, for any purpose, especially one written down to aid the writer’s memory of things said and done. The Court of Appeals also referenced an opinion by the Wisconsin Attorney General and stated that notes become subject to disclosure if they are distributed to others for the purpose of communicating information or are retained for the purpose of memorializing an activity.  In these situations, the court stated, such notes would go beyond personal use and lose their exemption.  In this case, there was no evidence the notes at issue were ever distributed.  Further, the court observed, the notes have “the appearance of fragmentary notations of the type commonly created by people when they anticipate being the only users of the notes” and others would not be able to determine the meaning of the notes without a detailed interpretation by their creators.  The court further acknowledged the mere fact that notes have the potential for distribution to others does not deprive the notes of their personal-use nature.             This case provides further understanding and definition to local authorities of when notes should be disclosed as a part of a public records request.  Although there is a presumption that public records are open to the public upon request, notes are exempt from such requests when created for personal use and not shared.  Therefore, public officials should be cautious when responding to public records requests for documents that might include personal notes.