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Searching for Articles published in February 2016.
Found 9 Results.

Company Websites May Tangle Up Employers in ADA Liability

Posted on February 8, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

Does your company’s public business website create liability under the ADA?  The short, lawyerly, answer is—“it depends.”  Plaintiffs’ lawyers across the country are seizing upon Title III of the ADA [Places of Public Accommodation] as a basis for making threatening demands and filing lawsuits based on the claim that publicly-accessible business websites do not provide access to individuals with disabilities—i.e., those who are deaf or blind [for example, a website may not be encoded in a manner to allow blind individuals to use “screen reader” software that converts webpage text to audio or Braille].   The central question in these lawsuits is whether a website is a “place of public accommodation” under the purview of the ADA.  My previous, “it depends” comment is appropriate because courts are divided in their decisions concerning whether a website qualifies as a place of public accommodation.  Some courts have answered that question in the affirmative—like the federal Seventh Circuit Court of Appeals [which hears cases impacting businesses in Wisconsin, Illinois and Indiana], which held that Title III of the ADA covers electronic spaces too—while other courts have held that places of public accommodation are limited to physical locations such as brick-and-mortar buildings.  Other courts have required a “nexus” between the website and the specific services or products offered at the corresponding brick-and-mortar location, further adding to the confusion.    The federal Department of Justice has been promising regulatory guidance and clarity on this very issue for years—and was supposed to publish those regulations in 2016.  However, those regulations have now been pushed to 2018, creating more uncertainty and opportunities for businesses to be sued.  This uncertainty prompted a group of US Senators to draft a letter in December 2015 urging regulators to complete the regulatory review process and put concrete guidelines in place to assist businesses in their compliance efforts.  Although small businesses may resort to the “undue burden” or “fundamental alteration” defenses when facing scrutiny, these defenses are not easily demonstrated and can be costly to raise.  Let’s face it, this conundrum is not going to go away—at least while we have the internet.   This issue may ultimately find its way to the Supreme Court.  We’ll keep you posted on developments in this area.

NLRB Mails it In: Captive-Audience Speeches in Mail-Ballot Elections Now More Restrictive

Posted on February 4, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

For most companies that have experienced a union organizing campaign, the concept of “captive audience” speeches on the eve of a manual, secret-ballot election is very familiar.  In this context, the National Labor Relations Board (“NLRB”) has long held that employers are generally prohibited from conducting massed captive-audience speeches within the 24-hour period prior to the scheduled start of a manual, secret-ballot representation election.  This is the so-called “24 hour rule.”    This rule does not prohibit, however, certain other types of voluntary meetings with employees or non-coercive, one-on-one meetings with employees during the 24-hour prohibited period. For over 50 years, mail-ballot representation elections have been guided by a slightly different set of rules—employers are generally prohibited from conducting massed captive-audience speeches from the time the mail ballots are scheduled to be dispatched until the time and date set for their return.  In other words, speeches during the 24-hour period leading up to the dispatch of the ballots historically have been permissible.  Recently, the NLRB, in Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016), changed the rules of the game in connection with mail-ballot representation elections.  According to the NLRB, in response to “confusion” concerning the mail ballot election rules [and the NLRB’s apparent misapplication of the law precipitating the Guardsmark case—perhaps creating a self-fulfilling prophecy?], employers are now prohibited from conducting massed captive-audience speeches within the 24-hour period prior to the date and time mail ballots are scheduled to be dispatched until the time and date set for their return. 

Federal Court Rejects NLRB’s Recently-Adopted Solicitation Standard, Criticizes NLRB’s Reasoning

Posted on February 23, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

If you follow this blog, you may recall my post from November 26, 2014 Labor Unions Have Another Reason to Be Thankful: NLRB Serves Up Holiday Season Gift about the NLRB’s controversial decision in Conagra Foods, Inc., concerning the meaning of “solicitation” for purposes of the National Labor Relations Act.  Although the Conagra Foods, Inc. decision floated under the radar due to other noteworthy decisions around the same time, most management-side labor-relations lawyers—myself included—viewed the decision as part of an insidious attack on the ability of companies to prohibit and/or curb a species of workplace chatter that is disruptive and threatens productivity and security.  At its core, the Board’s 2014 Conagra Foods, Inc. decision stands for the proposition that an employer could prohibit “solicitation” through a company policy, and discipline in connection with prohibited “solicitation”—which involves a communication during which workers are asked to join a union or support union membership—only when such solicitation is accompanied by the act of physically presenting an authorization/membership card and asking for a signature—a very narrow interpretation of “solicitation.”  The Board also concluded that when otherwise prohibited “solicitation” is very brief in duration—and is not likely to interfere with workplace production—no solicitation occurs.  Recently, the US Appeals Court for the Eighth Circuit [which issues decisions that primarily impact businesses in Minnesota and Iowa, among other states], took issue with the Board’s narrow definition of “solicitation” espoused in Conagra Foods, Inc.—and flatly rejected the Board’s reasoning.  The Court began its analysis by recognizing that employers have the legal right to create and enforce rules prohibiting union “solicitation” during working hours—within certain technical parameters [i.e., “working hours” is narrowly defined, etc.].  The Court opined that the Board’s definition of “solicitation” advanced through the Conagra Foods, Inc. decision is inappropriate because it “would prevent employers from maintaining production and discipline.”   Finding the Board’s definition of “solicitation,” “patently unreasonable,” the Court opined: Under  the  Board's construction of the Act, an employee cannot be prohibited under a valid no- solicitation policy from requesting support for union organization from another employee in the most explicit terms, putting a pen in his fellow employee's hand, so long as he directs the solicited party to sign a card only at the end of the shift.  To hold that an employer would violate the Act by censuring such clearly solicitous activity seems to us absurd, straying far afield of what employers, employees, and prior Board decisions have understood solicitation, in its ordinary sense, to entail. Next, the Court rejected the Board’s categorical conclusion that a very brief encounter involving solicitation of union-membership—in the Board’s words, “a momentary interruption in work, or even a risk of interruption”—cannot rise to the level of prohibited “solicitation.”  The Court found this standard to blur the historically-clear line between permitted “merely union related” conversations and those prohibited conversations during which union membership is solicited.  In the Court’s view, communications that involve solicitation of union membership may be subjected to a blanket prohibition during working time—regardless of the level of workplace disruption involved [whereas other conversations about unions that do not involve solicitation of membership, may only be prohibited if sufficiently disruptive—a case-by-case evaluation].  According to the Court, finding “solicitation” for purposes of the National Labor Relations Act only when a conversation during which solicitation of union membership is also accompanied by presentation of an authorization card and request for a signature, incorrectly does away with an employer’s right to impose a blanket prohibition on communications involving the solicitation of union membership during working hours.  Although this case does not nullify the applicability of the Board’s 2014 Conagra Foods, Inc. decision in Wisconsin, it certainly provides a much-needed roadmap for the Courts in the event a Wisconsin-based employer’s actions are scrutinized.  This decision is a big win for employers. 

Thurmond Rule Will Impact High Court Employment and Labor Law Decisions in Aftermath of Justice Scalia’s Death

Posted on February 17, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

In the aftermath of Supreme Court Justice Antonin Scalia’s recent death, many of my friends and colleagues have asked what Justice Scalia’s passing means to the future of significant employment and labor law cases.  First, Justice Scalia’s death means that it is likely that the Supreme Court will be deadlocked 4-4, along ideological lines, when taking up significant, sea change employment and labor law cases—like Friedrichs v. California Teachers Association, the highly-publicized, polarizing public-sector union “agency fee” case.  Prior to Scalia’s passing, many legal pundits predicted SCOTUS would decide Friedrichs in favor of the plaintiffs 5-4, eliminating agency fees for public-sector unions.   In sandlot baseball, a tie goes to the runner [there really is no such rule in baseball—the runner must beat the throw he or she is out]—in the Supreme Court context, a 4-4 tie means the lower court decision is allowed to stand, as if the Supreme Court never heard the case.   So…Justice Scalia’s passing probably means deadlock until a new Justice is appointed and confirmed. How soon a new Justice may be appointed and confirmed is another interesting, highly political and ideological matter.  Shortly after Justice Scalia’s passing, both Democratic and Republican leadership issued statements about the morality of filling Scalia’s seat—Senate Minority Leader, Harry Reid (D-Nev.), wrote that failing to promptly replace Scalia would be “shameful,” while Senate Majority Leader, Mitch McConnell (R-KY), wrote that the American people should “have a voice in the selection of their next Supreme Court Justice,” and the vacancy should remain open until the next President is seated.   Interestingly—especially for a political junkie like me—the Republican majority is likely to publicly justify their all but certain delay in entertaining appointments on a decades-old parliamentary tradition, or informal rule, called the “Thurmond Rule,” named after late Senator Strom Thurmond, who originally invoked the concept in connection with one of LBJ’s SCOTUS appointees.   The crux of the Thurmond rule is that lifetime judicial appointments made toward the end of a lame-duck presidency are inappropriate.  Democrats and Republicans alike have promoted or disavowed the Thurmond Rule according to political expediency.  Historically, the Thurmond Rule has not been invoked to justify a year-long vacancy on the High Court—but the Senate Democrats are unlikely to garner enough votes needed to initiate the confirmation process. We will keep you updated as things continue to unfold.  

Employer’s Modification to Employee Handbook Break Policy Was Unfair Labor Practice

Posted on February 11, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

Often [at least within my respective circles of friends and co-workers],the National Labor Relations Board (NLRB) is criticized for its polemics of ipse dixit—“it is so because we say it is so.”    Recently, one business advanced this same criticism through legally challenging the NLRB’s decision in federal appeals court.   On February 9, 2016, the US Court of Appeals for the Eighth Circuit [which issues opinions that impact businesses in Minnesota and Iowa, among other states], in Parsons Electric, LLC v. NLRB, concluded that a Minnesota-based employer committed an unfair labor practice when it modified its employee handbook “break” policy—without first notifying, and negotiating with, the incumbent union that represented a unit of its employees.   In Parsons Electric, the employer modified its handbook break policy to afford it more latitude in establishing job-specific break rules—as the collective bargaining agreement was silent as to breaks for bargaining-unit employees.  Not surprisingly [many of my clients have held the same position], the employer’s position was that management rights language within the CBA permitted it to revise the handbook break policy without notice to the union and opportunity to bargain about the proposed policy change.  Eventually, several employees complained to the union about the new policy—which was not as employee friendly as the company’s previous break policy.   The union filed an unfair labor practice charge—alleging an unlawful, unilateral change to a term and condition of employment—here, employee breaks—which is a mandatory subject of bargaining [in most instances].  The NLRB sided with the union.  Although not raised in the Parsons opinion, it is important to note that broadly-worded management rights clauses do not generally authorize carte blanche changes to terms and conditions of employment that are mandatory subjects of bargaining, without notifying and negotiating with the union.  However, if a management rights provision is worded in a manner that supports a specific action—in this case, expressly authorizing an employer’s right to unilaterally revise employee handbook policies governing employee breaks—the outcome in this case likely would have been different.  This type of language, however, is not common to collective bargaining agreements, either because of a lack of bargaining leverage or because such language is low priority when placed in context.  Here, the employer wisely took the position that the revision to the handbook break policy was not a “material, substantial and significant” change, and thus, did not necessitate notice to the union and an opportunity to bargain about the change.  The Court, however, did not buy this argument, and upheld the NLRB’s decision that Parsons committed an unfair labor practice by virtue of changing the policy. NOTE: For the sake of full disclosure, one of my former colleagues represented the employer in this case. 

Joint Employer Status

Posted on February 15, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

On February 3, 2016, in Crew One Productions, Inc. v. NLRB, the US Court of Appeals for the Eleventh Circuit [which issues opinions that impact businesses in Alabama, Florida and Georgia] concluded that the NLRB misapplied the law concerning whether two separate employers may be treated as a single, joint employer for union organizing purposes.   For this reason, the decision is viewed by members of the business community as a welcome sign that the NLRB’s new, expansive definition of joint employment may not be universally endorsed within the federal court system.  In this case, the NLRB concluded that Crew One’s independent contractors, dispatched to work as stagehands in connection with concerts, plays, sporting events and graduation ceremonies, were employees for purposes of the National Labor Relations Act.   This determination gave the NLRB jurisdiction over the stagehands, and the NLRB ordered a representation election after it received a representation election petition from a stage employees union.  The union won the representation election and the NLRB ordered Crew One to bargain with the union—however, it refused, precipitating an unfair labor practice charge and eventually an appeal to the federal court.  Without getting too far into the weeds, the Court concluded that the NLRB screwed up the analysis in connection with factors such as: (1) the degree of control Crew One exercised over the stagehands [very little]; (2) failure to withhold taxes; and (3) the significance of written independent contractor agreements.   

Legislative Changes Affecting Local Government Units

Posted on February 8, 2016, Authored by Kevin J.T. Terry, Filed under Local Governments and School Districts

On Thursday, February 4th Governor Walker signed 21 bills into law at the Wisconsin State Capitol in Madison.  Many of these laws addressed transportation, hunting, and other miscellaneous issues.  Two of these bills however directly affect municipalities and I want to briefly describe them in this blog. The first is Assembly Bill 439 which changes the publication notice requirement from 10-days to 15-days for most local governments which make certain specified changes to their budgets.  Assembly Bill 439 will standardize publication requirements for municipalities.  Hopefully, this bill will reduce confusion for municipalities dealing with the recent changes to notice posting requirements in Wisconsin. The second is Assembly Bill 372 which guarantees municipal governments in a Lake District have the power to fully choose who represents them on a Lake District Board.  Current law disqualifies some municipality officials from being able to represent their municipalities on a Lake District Board.  This was never the intent of the law and Assembly Bill 372 changes the law to assure that municipal officials are able to represent their home municipalities on a Lake District Board. Both of these legislative changes are effective immediately.  We will continue to provide updates on legislative changes affecting municipalities here on the Blue Ink Blog.  Thanks.  Have a great weekend.

Will Employers Be Surprised in July?

Posted on February 5, 2016, Authored by Dean R. Dietrich, Filed under Employment

Recent statements from the Department of Labor Solicitor Patricia Smith have suggested that the new regulations being considered by the Department of Labor on the white collar exemptions from overtime will be published in July and become effective in September.  This is an earlier date than was originally hinted at by Solicitor Smith in prior statements.  While the effective date of proposed new regulations on FLSA exemptions is unclear, the content of the regulations are well known and publicized.  Effective sometime this year (likely September), the overtime exemptions for administrative employees and professional employees will be modified to require that an employee receive a salary of $970 per week instead of the current $455 per week.  This means that a number of mid-level employees may now be subject to overtime pay requirements if they do not meet this salary level.  There has been talk about changing the “primary duties” test which is part of the exemption requirements but to date, nothing has been published or announced about the primary duties requirement. Employers need to be looking closely at this issue.  Employers need to decide whether those currently overtime exempt employees whose salary is below $52,000 a year will now begin to receive time and one-half pay for hours worked over 40 hours per week or will have their salary adjusted to the higher level.  Employers also need to have a clear understanding of the work being performed by these mid-level employees to make the determination on how best to proceed.  Employers must not forget the definition of “time worked” and remember that working during non-office hours (i.e. communicating by e-mail after work) must be counted as time worked for purposes of the 40 hour per week limitation and the requirement for overtime pay. This change in the annual salary required for exempt status may be more critical than employers think.  This is especially true if the employer expects these mid-level employees to be available at any time to respond to questions or address work-related issues.  Employers must be prepared to properly address this issue and avoid overtime liability.

Exclusive Remedy of Worker’s Compensation Bars State Law Claims for Emotional Distress

Posted on February 1, 2016, Authored by Russell W. Wilson, Filed under Employment

The federal District Court for the Eastern District of Wisconsin dismissed two state law emotional distress claims in a lawsuit based on the exclusive remedy provision of the Wisconsin Worker’s Compensation Act (WCA).  The employee filed suit under the Americans with Disabilities Act (ADA) alleging that the failure of her employer to provide requested leave under the Family Medical Leave Act constituted discrimination under the ADA.  In addition, the employee alleged two claims under Wisconsin law:  intentional infliction of emotional distress against her direct supervisor and negligent infliction of emotional distress against the supervisor and her employer.  Specifically, the employee alleged that her supervisor and employer had assigned her additional duties which caused her to gain weight, become diabetic, and to suffer sleep loss and panic attacks.  The allegations of the complaint made it clear that the allegedly injurious conduct occurred to the employee while she performed her work duties and her emotional injuries arose out of her work duties. Under these allegations, the federal district court readily dismissed the emotional distress state law claims pursuant to established Wisconsin judicial decisions.  The federal district court judge reviewed, however, Wisconsin case law in the sexual harassment context.  Examining Lentz v. Young, 536 N.W.2d 451, 457 (Wis. Ct. App. 195), the court noted that Wisconsin’s exclusive remedy provision does not bar a claim for intentional sexual harassment where the perpetrator and the employer are one and the same.  In Lentz the sexual harasser was the business owner, who operated as a sole proprietorship.  The federal judge interpreted the Lentz case as presenting a “unique situation” where the concern is that “a sole proprietor would be able to use the WCA as a shield to protect himself or herself from liability for intentional acts against an employee.”  By contrast the perpetrator here, the direct supervisor, was clearly a co-employee and the alleged wrong was the denial of requested accommodation in the form of leave.  The case is Robinson v. Gateway Technical College, 2016 WL 344959 (E.D. Wis. January 26, 2016). It should be noted that the state law claim barred by the exclusive remedy provision is for emotional distress.  The outcome would have been different if the complaint had alleged the supervisor had assaulted the employee with intent to cause her bodily harm (even though bodily harm typically entails emotional injury), which is explicitly carved out of the exclusive remedy provision.  It should also be noted that federal court decisions are not binding precedent in the Wisconsin courts or in the Department of Workforce Development.  Having said that, the dismissal of the state law emotional distress claims pursuant to the exclusive remedy provision of the WCA is not at all surprising.