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Searching for Articles published in November 2015.
Found 10 Results.

Federal Judge Dismisses Lawsuit Regarding Tattoos

Posted on November 6, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by a federal judge in Chicago has upheld the right of the City of Chicago to require police officers to cover visible tattoos while on duty.  The Chicago Police Department implemented a Department policy that banned the display of tattoos while on duty.  The City said this policy was necessary to insure professionalism within the Police Department and to maintain public trust and respect which could negatively be impacted by the display of tattoos.  Three police officers brought suit against the City challenging the Department policy arguing the policy negatively impacted the freedom of speech of the officers. The Court dismissed the lawsuit and found that the public display of tattoos could cause the public to question whether allegiance is to the Department or to the organizations that were represented by the tattoos.  The Court also held that professionalism was more important than the individual’s personal expression.  The Court found that the individual tattoos were a form of personal expression rather than a form of speech relating to matters of public policy or concern. While this seems like a small case, it does have an impact upon the right of local governments to restrict personal expression in the form of tattoos or other activities like clothing or hair style.  The local government must show that the restriction is reasonable and related to the operations of the municipality to overcome a legal challenge.  This case shows that individuals do not have an unfettered right to personal expression while working for a local government. 

Court of Appeals Supports Handbook Rule Urging, But Not Requiring, Employees to Take Their Complaints Directly to Their Supervisor

Posted on November 18, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

A recent decision by the D.C. Circuit U.S. Court of Appeals reversed in part the National Labor Relations Board’s order against a private-sector employer regarding its employee handbook employee-complaint provision finding that the handbook rule was lawful and did not implicate employees’ Section 7 rights under the National Labor Relations Act or otherwise prohibit employees from engaging in protected concerted activity by discussing their complaints with each other. In Hyundai America Shipping Agency, Inc., D.C. Cir., No. 11-135111-1413 (11/6/15), the Court agreed that the NLRB properly invalidated three out of five handbook rules because they interfered with employees’ Section 7 rights.  However, the Court reversed the NLRB’s order to invalidate two handbook rules, one on jurisdictional grounds, and the other because it did not interfere with employees’ Section 7 rights.  The Court disagreed with the NLRB and found lawful the following handbook provision: [Employees should] [v]oice your complaints directly to your immediate superior or to Human Resources… [and c]omplaining to your fellow employees will not resolve problems. The Court found that this language did not prohibit complaints protected by Section 7.  Rather, the language urged employees to voice their complaints to management, but “is neither mandatory or preclusive of alternatives.”  Further, the Court pointed out that the rule did not prescribe penalties if an employee discussed complaints with a fellow employee.  Thus, “a reasonable employee would not read the provision, with its exhortatory language and lack of penalties, to prohibit complaints protected by Section 7.” There is no bullet-proof handbook language for how employees handle their internal complaints.  A rule’s language, its context, and a particular court may arrive at different results.  Nevertheless, employers should carefully review their handbooks for provisions on how employees voice their complaints.  If a handbook rule requires, or can be reasonably interpreted to require, that internal complaints affecting employees’ rights are only to be discussed with management and/or provides penalties for not doing so, then consideration should be given to modify such language so as to avoid a future challenge.

Court of Appeals Gives Protection to Employee “Like” of Negative Comments

Posted on November 10, 2015, Authored by Dean R. Dietrich, Filed under Employment

A recent decision by the Second Circuit Court of Appeals has upheld the decision by the National Labor Relations Board that action taken by two employees on a Facebook page should be considered protected speech and therefore the employees should not have been terminated from employment.  In this decision involving the Triple Play Sports Bar and Grille, the NLRB sought reinstatement of two employees who clicked “Like” on a post on Facebook that was critical of the bar owners and also posted a comment in favor of an ex-employee’s Facebook comment about the owners.  The NLRB ruled that the action taken by these employees should be considered protected speech and therefore they should not have been terminated from employment because of their actions.  The Court of Appeals upheld the NLRB decision but decided not to publish its decision which sends a message that the decision is very much limited to the actual facts of the case. It is important, however, for employers to realize that many types of different activities of employees could be construed as protected speech if it relates to workplace conditions or is a commentary about the actions of any employer.  It is hard to imagine that the act of “Liking” a post on Facebook rises to a level of protected speech but that is the ruling from the Court of Appeals.  Employers must be very careful when making decisions about the employment of an individual employee who has made comments about the company or its business operations.

Legal Updates on Bills Affecting Employers, Schools, and Local Governments

Posted on November 17, 2015, Authored by Kevin J.T. Terry, Filed under Employment

As a service to our clients, contributors to the Blue Ink will be drafting legal updates regarding the recent bills signed by Governor Walker. Many of the bills directly affect both public sector and private sector employers. The first update in this series relates to a school district or local government unit’s duty to post a notice. A link to this legal update, and to future updates, can be found here.  Watch for future blog posts detailing these updates.

Five Ruder Ware Attorneys Selected for Wisconsin Super Lawyers

Posted on November 18, 2015, Authored by ,

Attorneys Mark Bradley, Melissa Kampmann, Mark Munson, Randi Osberg, and Bryan Symes have been selected as Wisconsin Super Lawyers.  Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. For more information about Super Lawyers, visit SuperLawyers.com. Attorneys selected for inclusion in 2015 Wisconsin Super Lawyers are: Attorney Mark Bradley, Wausau:  Estate Planning & Probate Attorney Mark D. Munson, Wausau:  Elder Law Attorney Randi Osberg, Eau Claire:  Business/Corporate Attorneys named for inclusion in 2015 Wisconsin Rising Star are: Attorney Bryan Symes, Eau Claire:  Employment & Labor Attorney Melissa Kampmann, Wausau:  Estate & Probate

Worker’s Compensation Light Duty Programs for Occupationally Injured Employees and the ADA

Posted on November 24, 2015, Authored by Russell W. Wilson, Filed under Employment

Employers often establish a light-duty program that is reserved for employees who have work-related injuries or conditions during their healing periods.  The hallmarks of these programs is that temporary light-duty work is reserved for those employees receiving temporary benefits under worker’s compensation.  The rationale for this program is to help the employer comply with the Worker’s Compensation Act (“WCA”) while managing its worker’s compensation insurance premiums and easing worker’s back into the workforce after an on-the-job injury or condition. But how does reasonable accommodation under the Americans with Disabilities Act (“ADA”) interplay with light-duty programs?  Specifically, does the ADA require that an employer that maintains a light-duty program offer a light-duty position to an employee who is a “qualified individual” but whose injury or condition is not work-related?  The Eastern District of Wisconsin recently addressed this question in Severson v. Heartland Woodcraft, Inc., 2015 WL 7113390 (November 12, 2015).  The answer is: it depends.  The Court in Severson was confronted with a decision it had issued in an earlier case, Gibson v. Milwaukee County, 95 F. Supp.3d 1061 (E.D. Wis.2015).  The outcome depends upon whether, at the time a request for a reasonable accommodation is made, a light-duty position established under a light-duty program exists and is vacant.  Neither the ADA nor the WCA require an employer to create a light-duty position.  Creating a light-duty program for worker’s compensation purposes goes beyond that required under the ADA.  Creating such a program allows the employer, pursuant to its light-duty program, to establish a temporary, light-duty job when an employee is ready to return to work during the healing period for a work-related injury or condition.  Once the employee’s healing period is over, the temporary position expires.  In other words, the employer’s light-duty program does not necessarily require that a permanent light-duty position be created.  Rather, the light-duty positions may be, and typically are, created on an ad hoc basis. In the Gibson case, the employer had a light-duty program and also had an existing and vacant light-duty position at the time a non-occupationally injured qualified employee made a request for a reasonable accommodation under the ADA.  The Court found under that circumstance that the employer had violated the ADA by not having considered offering the vacant position to the qualified individual.  In contrast, however, the employer in the Severson case had a light-duty program that allowed for establishing light-duty positions on ad hoc basis, i.e. whenever an employee could return to work during the healing period for a work-related injury or condition.  The Court in Severson had no difficulty in determining that there was no violation of the ADA under that circumstance.

Employers Get Break For Now

Posted on November 19, 2015, Authored by Dean R. Dietrich, Filed under Employment

In a surprise announcement, the Solicitor of Labor, Patricia Smith, has indicated the final rule on overtime eligibility being considered by the Department of Labor will likely not be declared final and implemented until late 2016.  During a panel discussion at the American Bar Association’s Labor and Employment Law Conference, Solicitor Smith indicated there were a huge number of comments about the proposed rule that would raise the salary limit for those who are eligible to be exempt from overtime pay from $23,660 per year to $50,400 per year.  The Solicitor of Labor indicated the rule likely will not be implemented until very late in 2016 after the Department has had a chance to digest all of the comments and make final corrections to the proposed rule. Many are surprised this proposed rule would not be implemented until after the election.  It is possible this delay is because of the unpopularity of the rule and the desire by the Department of Labor to determine whether such a rule will actually be enforced or if political opposition will cause further delay in the imposition and enforcement of the rule.  For now, employers can breathe easier but should not ignore the potential impact of this rule change.  There is still a strong potential many employees who are currently exempt from overtime pay will become nonexempt and eligible for overtime pay because their salary does not place them in the exempt category. Ruder Ware will continue to monitor this and keep you advised about any changes in the implementation timeline. 

NOTICE! - He’s Back! Almost 50 Bills Signed into Law Recently by Governor Walker

Posted on November 16, 2015, Authored by Kevin J.T. Terry,

Last week, Governor Walker signed into law almost fifty new bills, many of which affect local government units, schools, and private employers’ human resource departments. My intent over coming days and weeks is to provide a summary of some of the important new laws. As the title of this blog not so subtly hints, the first bill I want to address is 2015 Wisconsin Bill 79 which amends Wis. Stat. Sec. 985.01 relating to a municipality’s publication of certain legal notices on the internet. Under current law, certain legal notices are required by statute to be published. Legal notices are generally published in a newspaper likely to give notice in the area or to the persons affected. Current law also allows certain municipalities to opt to post certain legal notices in lieu of publishing the notices in a newspaper, if the municipality meets statutory requirements regarding timing and placement of the notices. Further, under the law currently the municipality must post the notice in at least three public places likely to give notice to persons affected, and must post a notice that would be published before the act or event requiring notice no later than the time specified for the first newspaper publication or, if the notice would be published after the act or event requiring notice, must post the notice within one week after the act or event.   After the signing of 2015 Wisconsin Act 79, a municipality that opts to post a legal notice in lieu of publication may, instead of posting the notice in three public places, post the notice in one public place and publish the notice on the municipality's Internet site. What this really means is that the new law allows all municipalities, including school districts, to post legal notices in one public place and their internet site rather than three public places. Public meetings, hearings, and other notices may now be posted on the municipality’s website and only one public place. The new law does not change the language of the open meeting statute, however, the language of Wis. Stat. Sec. 985 clearly states that “notice” under this section includes any notice of a meeting of public body. If you have questions about this change to the law please feel free to contact any of the local government attorneys, school law attorneys, or employment law attorneys at Ruder Ware including the author.  Also, be ready for more updates regarding the recent bills signed into law by Governor Walker that affect your municipality, school district, or business.

School Law Seminar

Posted on November 6, 2015, Authored by ,

To register please contact Shannon Jacobson at: sjacobson@ruderware.com or (715) 845-4336. We look forward to seeing you. Holiday Inn & Suites, 1000 Imperial Ave, Rothschild, WI Ruder Ware is presenting a School Law seminar on December 3, 2015 at the Holiday Inn Hotel & Suites in Rothschild, Wisconsin (click here for information and directions). The seminar is designed to give detailed information to school administrators, human resources personnel, and finance executives. We hope you will take the time to attend this event. Agenda 4:00 - 4:45 p.m.   2015-2017 Budget Update Attorneys Dean Dietrich, Mary Ellen Schill, and Kevin Terry will touch on a number of provisions in the recent budget that affect school districts. These topics include changes to open enrollment, district benefit plans, and curriculum requirements. 4:45 - 5:15 p.m.   Assisting Transgender Students School districts are frequently the first to see difficulties in dealing with accommodating students from diverse backgrounds. Whether it be in restroom use, participation in athletics and extracurricular activities, or in curriculum, the issue of dealing with transgender youth is at the forefront for many Districts. Attorney Terry will touch on these issues and answer any other questions posed by attendees regarding transgender students. 5:15 - 6:00  p.m. Dinner and Networking - Refreshments will be available        6:00 - 7:00 p.m.   Retiree Benefits and other ACA Related Issues The costs associated with health care and other employee benefits are forcing districts to consider changes to the plans offered to current employees. The question becomes what happens if the district wants to change the benefits offered to retirees? Attorney Schill will help attendees navigate this confusing area of the law and will answer questions regarding your District's plan. 7:00  - 7:30 p.m.  Managing Controversy When trouble strikes, district administrators are tasked with dealing with the aftermath. From conducting employee investigations, to handling media statements, and to dealing with divided school boards, Attorney Dietrich and Attorney Terry will provide wise wisdom on how administrators can keep their cool through the most stressful of District controversies.

Dean Dietrich Selected as ATHENA Leadership Award Recipient

Posted on November 4, 2015, Authored by ,

We are pleased to announce Dean Dietrich was selected as the Wausau Chamber’s 2015 ATHENA Leadership Award recipient.  The ATHENA Leadership Award® is presented to a woman ---or man--- who is honored for professional excellence, community service, and for actively assisting women in their attainment of professional excellence and leadership skills.  The Chamber explains on their Web site, “the ATHENA Leadership Awards® recognize members of the community who have played an important role in business, our community and the advancement of women. The ATHENA award is presented to a person who has demonstrated professional excellence, taken part in community service, and actively assisted women in attaining leadership skills that have helped them advance professionally.”  Dean is active throughout the state serving in leadership positions such as with the State Bar of Wisconsin, Wisconsin Public Radio Association, and the Early Years Coalition.  He is a recognized leader in educating lawyers about professional ethics and compliance with the Rules of Professional Conduct.  Dean’s goals include recognition for Marathon County as the best place to raise kids in Wisconsin and to help lawyers provide ethical service to clients.