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Searching for Articles published in December 2015.
Found 11 Results.

Anhydrous Ammonia Release Kills Worker – U.S. DOJ Sues Company Under the Clean Air Act

Posted on December 30, 2015, Authored by Russell W. Wilson, Filed under Employment

Companies that use anhydrous ammonia as a refrigerant may be regulated by the U.S. Environmental Protection Agency’s (“EPA”) Risk Management Plan program under the Clean Air Act and by OSHA’s Process Safety Management program under the Occupational Safety and Health Act.  Section 112(r)(1) of the Clean Air Act provides that owners and operators of stationary sources of listed extremely hazardous substances in quantities above specified threshold quantities have the same general duty as under OSHA’s Process Safety Management program.  That duty is to identify hazards that may result from releases using appropriate hazard assessment techniques, to design and maintain a safe facility by taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases that do occur. In 2012 a supervisor at a California winemaking company accidentally opened the wrong valve, which allowed anhydrous ammonia to be released.  The supervisor was not able to shut off the flow.  He ordered the wine cellar to be evacuated, but an employee encountered the cloud and was killed.  The EPA Administrator requested the Environmental Enforcement Section, Environmental & Natural Resources Division of the U.S. Department of Justice (“DOJ”) to file suit against the winemaker under the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  Suit was filed in the Eastern District of California on December 19, 2015. The suit alleges that 284 pounds of anhydrous ammonia were released.  The suit further alleges the following Clean Air Act Risk Management Plan violations:  inadequate equipment labeling; inaccurate ammonia inventory; inadequate documentation of design and construction standards; failure to have acceptable engineered systems in place; failure to have written standard operating procedures in place; failure to train and evaluate employees; failure to inspect and maintain the mechanical integrity of process equipment; failure to conduct a compliance audit at least every three years; failure to have an emergency response plan; and, failure to provide adequate emergency response training and equipment.  The suit also alleges failure under CERCLA to immediately notify the EPA and the applicable State Emergency Response Commission of the release. There is a reason why the suit was brought under the Clean Air Act and CERCLA:  the monetary penalties available under those statutes can be astronomical, much higher than are available under the OSH Act.  Employers may not have top-of-the-mind  awareness to think of a fatal accident to a worker as an environmental offense, but OSHA, EPA, and the DOJ do.  In fact, some OSHA inspectors have been trained to identify environmental regulatory violations and notify the EPA of them.  So for extremely hazardous substances such as anhydrous ammonia, the careful employer must keep environmental law, as well as worker safety law, in mind.

A "How To" on Employee Management

Posted on December 17, 2015, Authored by ,

Country Aire Banquet Hall G1312 County Rd P Stratford, WI  To register, call 715.675.3331 and press “1” or visit In today’s world, farmers have to manage people to get the job done. Managing people isn’t easy - not to mention all of the rules to follow as well. There are any number of human resources-related issues such as how to overcome communication barriers and tips for recruiting, hiring and training employees. This seminar will equip attendees with a basic understanding of human resources and provide suggestions on how you as an employer can protect your interests and your workforce. Agenda 9:45 a.m. Registration (coffee available) 10:15 a.m.  Welcome and Introductions by Sponsors 10:30 a.m.  Practical Procedures for Addressing Employment Issues, Attorneys Kevin Terry and Dean Dietrich, Ruder Ware 12:00  Lunch 12:30 p.m.  Worker's Compensation Basics for the Farm, Attorney Russ Wilson, Ruder Ware1:00 p.m.  Panel 1:00  Panel Discussion, Attorneys Kevin Terry, Dean Dietrich, and Sara Ackermann, Ruder Ware Please see Brochure for topic descriptions and additional details. QUESTIONS?  Contact Continuing Education at 715.803.1230 or email

IRS Issues Standard Mileage Rates for 2016

Posted on December 21, 2015, Authored by Mary Ellen Schill, Filed under Employment

Falling gasoline prices have finally gotten the attention of the IRS!  Late last week the IRS issued the standard mileage rates for determining the deductible cost for operating automobiles for various purposes (business, medical, charitable) beginning January 1, 2016. Details can be found here.  Of most interest to employers, the mileage rate for business mileage has been reduced from 57.5 cents per mile, to 54 cents.  What this all means is that employers that base employee reimbursements on the standard mileage rate will save a little money next year per mile. Make sure your payroll department is updated with the new rate!

Farm Transition Planning Workshop

Posted on December 6, 2015, Authored by ,

Holland's Family Cheese 200 Liberty Dr Thorp, WI Shannon Jacobson at Ruder Ware 500 N. First St, Ste 8000 Wausau, WI  54403 Registration Rate:  $25 Individual, or $50 Operation (up to four individuals) Registration covers conference materials and lunch Please make checks payable to:  Ruder Ware Please specify city of choice - Stratford (January 12), or Thorp (January 20) For questions call 715.773.1911 Event Details: 10:00 - 10:15 a.m. Registration 10:15 - 10:30 a.m.  Introductions 10:30 - 11:15 a.m.  The Clean Water Rule:  Definition of the "Waters of the United States" - Attorney Russ Wilson, Ruder Ware 11:15 a.m. - noon  Wetlands as Related to Farming and Land Improvements - Gary Starzinski, President, Star Environmental Noon - lunch served 12:30 - 1:30 p.m.  The Time is Right for a Succession Plan - Attorney Aric Burch, Ruder Ware 1:30 - 2:30 p.m.  Connecting the Dots to a Successful Farm Transition - Paul Woita and Justin Zoromski, Woita & Associates 2:30 - 3:00 p.m.  Panel Discussion/Question & Answer -  Attorneys Aric Burch and Russ Wilson, Ruder Ware; Gary Starzinski, Star Environmental; Paul Woita and Justin Zoromski, Woita & Associates; an ag lender, Investors Community Bank; and Tentative guest: Bob Bolsold of WAXX Ruder Ware As agriculture evolves, the nature of the industry becomes more complex and regulated. At Ruder Ware, we've followed the evolution and acted as business advisors and legal counsel for generations of producers and to businesses providing services for the agriculture industry. Our attorneys understand the business of agriculture and the many laws specific to this ever-changing industry Woita & Associates Woita & Associates Business and Retirement Planning has over 35 years of financial services and agribusiness business planning experience. Woita & Associates assists farm families in transitioning their legacy to the next generation and understands the needs of today’s farm families. Paul A. Woita a Senior Partner of Woita & Associates is a qualifying and life member of the Million Dollar Round Table and has been helping farm families with business planning for over 35 years. Paul’s specialty is in risk management and estate planning for farm families and other small business owners. Brochure link

Chicken Little Syndrome No More - NLRB Regional Director’s Recent Joint Employment Decision Proves the Sky Is Not Falling [Yet, Anyway]

Posted on December 7, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

In the aftermath of the National Labor Relations Board’s recent, controversial Browning-Ferris Industries “joint employment” decision [362 NLRB No. 186], many within the management-side legal community [myself included] issued portentous predictions about the future –including Trojan Horse organizing tactics and the adverse impact on pervasive contingent workforce arrangements.  However, one of the Board’s Regional Directors [Region Five] even more recently declined to find that a company and temporary staffing agency were joint employers under the new Browning-Ferris Industries joint-employment rubric.  The case is Green JobWorks, LLC/ACECO, LLC, Case No. 05-RC-154596 [available here: Green JobWorks].   At least for the moment—while the union appeals the decision—the sky is not falling.  In Green JobWorks, the union filed an election petition seeking to represent temporary demolition and asbestos-abatement workers supplied to ACECO [a licensed demolition and environmental-remediation construction contractor] by Green JobWorks [the staffing agency].  Not surprisingly, ACECO resisted the union’s efforts to obligate ACECO to bargain with the union in connection with the demolition and asbestos-abatement workers [in the event of a successful election, of course].   The Regional Director concluded that ACECO and Green JobWorks were not subject to the union’s election petition—and that only Green JobWorks was—based on the following factors: The contingent workforce contract entered into between Green JobWorks and ACECO placed all demolition and asbestos-abatement worker hiring, disciplinary and firing discretion exclusively with Green JobWorks. There was insufficient evidence that ACECO, in practice, influenced the decisions of Green JobWorks in terms of hiring, discipline, firing and other terms and conditions of employment. There was insufficient evidence that ACECO influenced the wage rates Green JobWorks paid the demolition and asbestos-abatement workers. ACECO had minimal involvement with “how” to do the job—but only assigned daily tasks. Evidence suggested that the general contractor or Green JobWorks, not ACECO, had control over terms of employment affecting break times, safety, speed of work, scheduling and productivity of workers. This is a significant case to watch—and we will continue to track it as it moves through the appeals process. 

Boys of Summer Bring Wage and Hour Lawsuit: Marks Beginning of Ideological Spring

Posted on December 10, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

Much ink has been spilled by those writing about the attention-grabbing, nationwide, consolidated wage and hour lawsuit brought by current and former minor-league professional baseball players.   The case is Senne v. Office of the Commissioner of Baseball, Case No. 3:14-00608-JCS, venued within the federal U.S. District Court for the Northern District of California.   As a baseball agent who represents a multitude of active minor-league players, and as an employment and labor-relations attorney, this case has captivated me since its inception.   Through the case, the players seek relief in the form of minimum wage and overtime payments due to them because allegedly: (1) their wages do not, when divided by the total number of hours worked in exchange for such wages, yield a minimum wage [players are paid only during the championship season, but are expected to perform services on a calendar-year basis]; and (2) they have not received overtime compensation for hours worked in excess of 40 in given workweeks.  In late November, the players I represent began receiving the collective action “opt in” notice authorized by the Court.  This notice triggered many questions about the nature of the lawsuit and likely outcome—and ultimately precipitated this blog post.  As a player agent, I am keenly aware of how little my minor-league clients earn in terms of annual salary—which always comes as a surprise to anyone with whom I talk who is unfamiliar with how the baseball machine operates.   For this reason, there is no question that the Senne case has the potential to be a paradigm-shifting event within professional baseball.    However, one aspect of the case is, in my opinion, underreported—which is understandable given that the case remains at a relatively infant stage.   This significant, potentially outcome-determinative aspect of the case is the so-called “seasonal amusement or recreational establishment” exemption from minimum wage and overtime compensation.  This exemption is a defense Major League Baseball is certain to raise in resisting the players’ collective effort to change the status quo—and it has already hinted, in Court documents, that the defense is applicable in the Senne case.   Under the “seasonal amusement or recreational establishment” exemption, once the League and the major league clubs demonstrate that professional baseball organizations are indeed amusement or recreational establishments [a given], the League and individual clubs must also demonstrate the following to take advantage of the exemption from federal minimum wage and overtime requirements: (1) the clubs’ revenue-generating operations do not operate for more than seven months in any calendar year; OR (2) during the preceding calendar year, average receipts for any six months of such year were not more than 33% of average receipts for the other six months of such year [this has been interpreted to mean that clubs must compare the average of the six lowest receipt-generating months to the average of the six highest receipt-generating months for purposes the “receipts” test].    This exemption is not untested in the context of professional baseball.  For example, legal claims for minimum wage and overtime relief have been advanced by groundskeepers, maintenance and cleaning employees, and batboys.  These lawsuits have had mixed success.  However, in the seminal case in my opinion, the Cincinnati Reds did not successfully invoke the exemption because the Court concluded that the club’s revenue-generating operation was a year-round operation [significantly, during the offseason, the club retained more than an insignificant number of workers—suggesting the club was not a truly seasonal business] and could not meet the “receipts test,” because average receipts for the leanest six months did not amount to more than 33% of the average receipts for the most lucrative six months.   However, in another similar lawsuit—one involving the Detroit Tigers—the club was able to satisfy the “receipts” test and take advantage of the exemption.  Due to the highly fact-drive nature of the “seasonal amusement or recreational establishment” exemption, the Senne case is not likely to produce an all-or-nothing, one-size-fits-all outcome.   Given the inconsistency in how the courts have applied the exemption, it will be interesting to monitor this case.  A victory for the players is welcomed—but many within professional baseball have posited portentous predictions if the players prevail, including minor-league contraction and a reduction in the number of players drafted each year in the Rule 4 Draft. Stay tuned for more.  This case has reinvigorated the players’ rights movement—some have suggested the case, notwithstanding the ultimate outcome, may be the impetus for the formation of a minor-league players’ union.   The Senne case also raises state-based companion claims based on a handful of state-specific laws.  However, because these laws are not applicable to all class members, I decided not to address those aspects of the case in this blog post.   

Town’s TIF Participation Expanded

Posted on December 1, 2015, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

On November 11, 2015, Governor Walker signed 2015 Wisconsin Act 96 which authorizes towns to participate in multijurisdictional tax incremental financing districts. Wisconsin Statute Section 66.1105(18)(c) was amended to read “Any town which may create a tax incremental district under this section or Section 60.85 may be part of a multijurisdictional tax incremental district. If a town board exercises the powers of a city under this subsection, it is subject to the same duties as a common council under this section and the town is subject to the same duties and liabilities as a city under this section.” The change to the law became effective on November 13, 2015. If you have questions about your Town’s TIF options, please contact me or Dean Dietrich at 715.845.4336.

Ruder Ware Pledges Support to Confluence

Posted on December 14, 2015, Authored by ,

Ruder Ware Law Firm and its attorneys have come together to pledge a collective gift of $150,000 to the Confluence Arts Center.  The gift incorporates individual commitments from several attorneys in the firm, as well as a discount in the legal services Ruder Ware has provided the Confluence Project since its inception in 2011. In recognition of the long-time service and leadership of Attorney David Anderson, an area in the Confluence Arts Center will be named in his honor.  Anderson, an Eau Claire native and 1966 graduate of the University of Wisconsin-Eau Claire, is the attorney who initially worked with Haymarket, LLC, on the early phases of the project. He served as Ruder Ware's Eau Claire office senior partner for years. The Confluence Arts Center fundraising is closing in on the $11 million mark as the challenge campaign deadline to raise $500,000 to secure a $1 million gift moves closer. The $500,000 for $1 million campaign will end on December 31, 2015, and it has received more than $400,000 toward that goal. The overall fundraising goal for the Confluence Arts Center is to raise at least $13.5 million as part of a match for state, city and county commitments. A groundbreaking for the building is tentatively planned for late spring/early summer 2016. Those wishing to make commitments in support of the “It’s Time” community campaign for the Confluence Arts Center should go to  

Private-Sector Unions Show No Meaningful Gain Despite Implementation of Quickie Election Rules

Posted on December 9, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

The “quickie election” rules promulgated by the National Labor Relations Board have been in effect since April 14, 2015.  Thus far, predictions have come true as the time it takes to file a union petition to the time of the election has been dramatically shortened.  On the other hand, the number of petitions filed for union representation during the first six months of “quickie elections” has hardly risen and the number of union wins during this same period has remained relatively flat compared to the same time period a year ago. For the six-month period running from April 14 to October 13 of 2015, the number of days between the filing of a petition for an election and the date that election was held has been 23, compared to 38 in that same time period in 2014.  This equates to a 39.48% reduction in the median number of days from the time of filing of a union certification petition to the election.  This is a big change in the culture of private-sector elections as employers under these new rules now have much less time to prepare for or conduct an effective campaign and argue against unionization.  Union-side supporters of the new election rules claim that reduction in days simply streamlines the process.  Employers, on the other hand, point out that these rules give a significant advantage to unions who have been planning their organization efforts for many months or more.  However, there has only been a slight rise in representation certification petitions and a small increase in union election wins.  This shows there has been no meaningful union gain for the six months following the implementation of the “quickie election” rules.  For the six month period April 14 to October 13 of 2015, there were 1,158 union petitions filed compared to 1,092 the same time period the year before.  Further, the percentage of union wins was flat with a 1 percent increase to 65 percent in 2015.  This may be somewhat of a “silver lining” for employers.  Nevertheless, employers still need to be ready for election organization efforts and be able to react quickly due to the now accelerated union organizing process.

2016 Standard Mileage Rates

Posted on December 21, 2015, Authored by Mary Ellen Schill,

The Internal Revenue Service has announced the optional standard mileage rates for computing the deductible cost of operating an automobile for business, medical, and moving expenses for 2016, and the reduced rates reflect the decrease in gasoline prices. Effective January 1, 2016, the optional standard mileage rates will decrease to 54 cents per mile for business transportation, and decrease to 19 cents per mile for travel relating to medical and moving transportation expenses. These mileage rates apply only to those expenses incurred or paid by a taxpayer on or after January 1, 2016 (and if reimbursed by an employer, reimbursed by the employer on and after that date). Expenses incurred prior to January 1, 2016 (whether reimbursed by the employer before or after that date) are still subject to the old 2015 rates (57.5 cents for business transportation, 23 cents for medical and moving transportation). The standard mileage rate for the deduction for charitable contributions remains unchanged from 2015 at 14 cents per mile. This change in mileage rates is relevant to employers that reimburse employees for business transportation based on mileage. While there is no legal requirement that employees be reimbursed at the IRS standard rate, many employers have a policy of doing so. As a reminder, any payments to an employee based on business travel at a rate in excess of the IRS standard rate generally is taxable income to the employee. If you have questions regarding the above, please contact Mary Ellen Schill, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

File Clerk and Receptionist Positions

Posted on December 30, 2015, Authored by ,

  Current Openings Due to recent retirements, Ruder Ware is seeking exceptional candidates for two full-time positions.  The successful candidates will be self-starters, problem solvers, organized, and possess great time management skills.  In addition, they should be able to work with limited supervision and provide exceptional client service in a professional environment.  Knowledge of electronic scanning and managing incoming calls would be preferred, but not required.