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Searching for Articles published in March 2016.
Found 10 Results.

Local Government Seminar - Spring 2016

Posted on March 27, 2016, Authored by ,

4:00 – 5:15 p.m. Recent Legislative Changes Impacting Local Governments. The Legislature has passed approximately 275 bills over the last 18 months.  This presentation will address the most important legislative changes that impact local governments from worker's compensation law changes to tax increment financing changes.  Ruder Ware attorneys will comment regarding the impact of these legislative changes on the provision of local government services. 5:15 – 6:00 p.m. Dinner and Networking. 6:00 – 7:30 p.m. Review of Laws Impacting Local Government Officials Ruder Ware attorneys will discuss the various laws that impact elected officials and appointed officials of local governments.  Presentations will be made on the open meetings law, public records law and local officials code of ethics.  Presentations will also be made regarding intergovernmental cooperation agreements and local government immunity cases that impact the potential for lawsuits against local governments.  This is an excellent opportunity for attendees to question the impact of these laws on how local governments do business. 7:30 – 8:00 p.m. Open Forum On Local Government Issues. Ruder Ware attorneys will be available to answer questions regarding topics of interest for local government officials.  To Register, please contact Shannon Jacobson at sjacobson@ruderware.com or by calling 715.845.4336 Holiday Inn & Suites 1000 Imperial Ave Rothschild, WI  54474

Paying For Getting Dressed?

Posted on March 29, 2016, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

A recent decision by the Wisconsin Supreme Court has raised the question whether municipalities need to pay employees for the time they spend getting dressed for work.  In the recent decision of United Food and Commercial Workers Union Local 1473 v. Hormel Foods Corp. (March 1, 2016), the Wisconsin Supreme Court affirmed a trial court decision that the company was required to pay employees for time spent putting on and off required sanitary clothing and personal equipment that was necessary to insure compliance with Federal Regulations regarding sanitary conditions for canning of food products.  The Supreme Court held that the “donning and doffing time” was an integral part of the principal activity performed by the employee and indispensable to the performance of work by the employee.  In this case, the use of sanitary clothing and equipment was not only required by company policy but was also required to comply with mandatory federal food sanitation requirements.  Because of this, it was clear that the employees were entitled to compensation for the time they spent putting on and taking off this clothing and equipment. The decision from the Supreme Court is very narrow and is focused around company policies and the manner in which the company decided to comply with Federal Regulations.  While the decision can be distinguished, there is a concern that the principles behind this decision would apply to various activities in a local government setting such as putting on safety equipment for employees working in underground settings or putting on bullet proof vests for police officers and other security type positions.  There is no clear court decision on these situations but the groundwork exists for a potential conclusion that time spent putting on uniforms and safety equipment could be considered time worked. There is no need, at this time, to change the methods for compensating local government employees, however, local governments should be aware of these cases and be sensitive to what policies are adopted by the governing body relating to the use of safety equipment or uniforms as part of the required work responsibilities for an employee.

Do Your Supervisors Actually Make Decisions?

Posted on March 31, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent decision of the Fourth Circuit Court of Appeals puts a spotlight on that question:  Do your supervisors exercise discretion when supervising others?  This question is important because the recent Court of Appeals decision held that several employees who were identified as supervisors actually did not exercise sufficient discretion to meet the definition of supervisory status and a union election result was allowed to continue because the employees that were identified as supervisors did not actually qualify as a supervisor.  The nuances of this Court of Appeals decision as it relates to an election for union membership is not as important as the findings by the Court that the four employees did not qualify as a supervisor under the NLRB definition.  The Court of Appeals held that these employees did not exercise discretion when performing their supervisory duties and therefore did not meet the definition of a supervisor.  One example was that employees were given blank discipline notices (like written reprimands) and told to issue those written reprimands every time an employee violated a company policy or directive.  The Court found that this lack of discretion in deciding whether or not to issue a discipline notice showed the employees actually were not supervisory and did not exercise the appropriate level of supervisory discretion. This decision was rendered in a union election case but it re-emphasizes and reinforces the narrow view of what is a supervisor under federal law.  The conclusion is that the employee must exercise discretion and be given the authority to use that discretion when supervising employees and making employment-based decisions in order for the individual employee to qualify as a supervisor.  If the employee has no discretion or is directed by higher-level management in all instances, the individual employee may not be considered a supervisor and may be eligible for union representation and other types of  protections.  Employers should be careful to make sure their individual employees do exercise discretion while acting as a supervisor.

Disability Discrimination Lawsuits can be Expensive

Posted on March 21, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent settlement of a disability discrimination lawsuit against AT&T shows that a discrimination claim can be an expensive proposition.  AT&T settled a disability discrimination lawsuit brought by the Equal Employment Opportunity Commission by paying $250,000 to the Commission and re-instating an employee.  The EEOC filed suit against AT&T for failing to provide a reasonable accommodation to a visually-impaired employee who had worked for 14 years for the company.  The employee suffered from a visual impairment and requested the use of adaptive technology software which would allow the employee to use computers and computer programs to perform his job as a switch technician for the company.  The company never responded to the request for an accommodation and removed the employee from his position and did not allow him to return to work because of his medical condition.  Because the company failed to respond to the request for an accommodation, the EEOC brought suit.  After commencing the suit, the parties participated in conciliation which resulted in the payment of $250,000 and the re-instatement of the employee with a provision for the adaptive technology equipment that the employee requested.  The company also was required to conduct annual training of its managers and post a notice in the workplace regarding the settlement.  This case may be more egregious than many because the company appeared to have completely ignored the request for accommodation by the employee.  The case also shows the importance of addressing an accommodation request and the potential for significant damages being paid if the employer fails to do so.  Employers need to be responsive and make sure they address accommodation requests made by an employee.

Federal Court Upholds NLRB’s Decision that Picker Who Bickered is Protected Under the National Labor Relations Act

Posted on March 14, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

Earlier this month, the federal U.S. Court of Appeals for the Seventh Circuit, which issues opinions that are controlling with respect to Wisconsin employers, determined that an employer’s decision to fire one of its workers violated the National Labor Relations Act.  The employer at issue in the case is a staffing company that provided contingent workers to a book supply company.   Here, the complainant’s co-worker was sent home because he couldn’t keep up with the flow of work, and when management asked him to pick up his pace, the complainant’s co-worker told management he wouldn’t work any faster at his hourly rate of $8.25 per hour.  The staffing employer sent complainant’s co-worker home as a result—nothing to see here, yet.   This decision angered the complainant—which ultimately culminated in the termination of her employment, as explained below.     According to the Court, the staffing employer terminated the complainant, who served as a “picker” for the client, book-supply company—a worker who works on a production line, selecting books to fill orders, placing the books in boxes and sending them down the line—because, according to the staffing employer, she disrupted production when she: (1) protested what she perceived to be management’s unfair treatment of her co-worker; and (2) “[got] the ladies in line worked up.”  The decision is Staffing Network Holdings, LLC v. National Labor Relations Board, found here: http://cases.justia.com/federal/appellate-courts/ca7/15-1354/15-1354-2016-03-02.pdf?ts=1456956053   Significantly for Wisconsin employers—even non-union employers like the staffing company in this case—the Court upheld the NLRB’s determination that the picker’s act of protesting in response to what she believed was unfair treatment of her co-worker, constituted protected, concerted activity.   The Court also concluded that “[getting] the ladies on the line worked up,” is an example of a brief, on-the-job work stoppage, which is a form of economic pressure entitled to protection under the Act.   In other words, because this conduct was protected activity under the NLRA, the employer’s admission that it fired complainant for these reasons was a clear violation of the National Labor Relations Act.  The staffing company was required to reinstate complainant and make her whole in terms of lost wages caused by the illegal termination of employment. Employers commonly characterize the type of conduct that precipitated the termination decision in this case as insubordination.  For this reason, the Staffing Network Holdings, LLC case teaches that employers must include protections under the NLRA  in their pre-termination checklist.  Employees and their lawyers are increasingly aware of the protections under the NLRA—non-union employers must follow suit.  

Christmas in July?

Posted on March 18, 2016, Authored by Dean R. Dietrich, Filed under Employment

I am afraid to report that many employees will be receiving a significant Christmas present in July.  The latest word is that the new FLSA regulations regarding exempt status will be issued in July and will be subject to a 60-day review period by Congress.  This means we will be faced with addressing the exempt status issue much sooner than anticipated. As you all know, the proposed regulations would significantly increase the annual salary that must be paid to an employee in order to qualify for exempt status under the Fair Labor Standards Act.  The annual salary will likely be set at $50,400 effective in September and will be indexed to increase every year.  An employee must be paid this annual salary in order to meet the salary test element of a determination that an employee is an exempt employee and is not eligible for overtime pay at the time and one-half rate.  The “duties” test will likely not be amended and will continue as existing in the past although the final version of the DOL Regulations has not been issued publicly.  The Regulations are being reviewed under an administrative review procedure before being published but every indication is that they will be published in July and effective in September.  The regulations affect every employer that has determined that employees in their company are exempt from overtime requirements because they qualify under the executive employee exemption, administrative employee exemption or professional employee exemption.  The major concern is in the administrative employee exemption area where an individual is part of the management team but may not be paid the higher salary that will be required as of September.  This means the company must either increase the annual salary or treat the employee as an hourly employee and compensate for hours worked in excess of 40 hours per week.  Under that determination, the major concern is off-hours worked which is expected of the administrative employee but not counted toward the 40-hours of work in the past.  Employers have been waiting for this “bomb to drop.”  The time is coming and employers must pay attention to the exempt status of its employees to avoid overtime pay liability.

Living (Successfully) with T1D

Posted on March 1, 2016, Authored by Melissa S. Kampmann, Filed under Community

Melissa Kampmann has been a Type 1 diabetic for 25 years; Makenna, her almost nine-year-old daughter, for about four years. It’s a misnomer that diabetes is hereditary, in fact it’s incredibly rare for a person that has diabetes to have a diabetic child. There was no family history in Melissa’s family, she was the first to ever be diagnosed with Type 1 diabetes. Type 1 diabetes is an autoimmune disease caused by the body getting confused into thinking the pancreas is a foreign object thereby investing its energies into attacking it and killing it off. The pancreas is an important organ - it produces insulin, an essential hormone regulating the amount of glucose (or sugar) in a person’s blood. Type 1 diabetes is not caused by any lifestyle factors, it is simply the result of an immune system that has turned against the body. Without a working pancreas, Type 1 diabetics have to control their blood sugars by administering insulin based on countless factors and counting carbohydrates. Both Melissa and Makenna administer their insulin through an insulin pump which is connected to a small plastic tube in their bodies. They both check their blood sugars by pricking their fingers with needles about 10 to 12 times a day and both wear something called a continuous blood glucose monitor in which a small wire is inserted under their skin which measures their blood sugar every five minutes. But no matter how hard a diabetic tries, they can’t perfectly control their blood sugars; mainly because anything can set them off – hormones, sleep, weather, stress, food and illness. Melissa teases there could be a connection to the migrational patterns of monarch butterflies and blood sugar levels. Having too little blood sugar (hypoglycemia) and too much blood sugar (hyperglycemia) wreaks havoc on a body’s system and the swings can have long term deleterious effects. Most people assume that managing diabetes is as simple as eating healthy and taking a shot. Far from it. All Type 1 diabetics deal with hypoglycemia and hyperglycemia on a daily basis because of the numerous factors that play a role in blood sugars. A swing in either direction too far can result in seizure, coma and death. This is why Melissa and and her husband Kevin wake up every 2 hours to check blood sugars. But to watch Melissa talk about diabetes, cope, and champion Makenna, her efforts appear effortless. It’s because Melissa and her family are working selflessly to make a positive impact through their involvement in the Juvenile Diabetes Research Foundation (JDRF). Melissa states, “we’re involved for three major reasons: the support of a community of other families dealing with diabetes, JDRF’s commitment to educate the public on the disease, and for their research to stop the complications related to the disease, improve treatments, and ultimately find a cure.” According to their Web site, JDRF is the leading global organization funding Type 1 diabetes (T1D) research. Their goal is to, “progressively remove the impact of T1D from people’s lives until we achieve a world without T1D.” Over 80% of their funds are used for research. In fact $98 million was invested in research in 2014. A good portion of the other 20% is dedicated to advocacy and education. Many people have not heard of JDRF because so little is spent on overhead and advertising. There are only two paid employees that cover the entire state of Wisconsin other than Milwaukee or Madison which is why it is crucial for JDRF to have volunteers. Melissa has witnessed firsthand the impact JDRF has made. Over the last 25 years, the insulin has improved, the monitoring has improved, and the technology to administer insulin has improved drastically. Melissa participated in a clinical trial last year for an artificial pancreas. An artificial pancreas is a combination of current technologies which allows for the administration of insulin based on computer algorithms and without the human mind. Melissa states, “It was freedom from my disease for the first time in 25 years.” JDRF has been a major funder of the technology which should be available in the next year or two. Melissa says, “it will be as revolutionary as the discovery of insulin - I can’t wait for the day when I can disconnect from the disease that controls me 24 hours a day.” Melissa and her family volunteer at the walks for JDRF and “Type 1 Days” (an event for kids with T1D). Melissa is also a JDRF advocate (she meets with elected officials to educate them on the need for funding of research) and is an active fundraiser. Melissa has also been a frequent speaker around the state at JDRF events. Melissa and Kevin host dinners for families who have had family members recently diagnosed with diabetes. She serves as a mentor for other mothers of type 1 diabetics. “No one can understand the life of a type 1 diabetic family unless they have been through it. I am so grateful that I can share my story with other families and give them hope for a great life for their child. Diabetic families lean on each other a lot.” Melissa was recently featured in JDRF’s Annual Report.

DOL OT RULE UPDATE!!!! Release Date Now Expected in June of 2016

Posted on March 17, 2016, Authored by Sara J. Ackermann,

Multiple D.C. insiders and media outlets have reported that earlier this week the DOL forwarded the proposed final overtime rule to the Office of Management and Budget (OMB) for its mandatory review.  (If right now you are asking yourself, “what is the proposed final overtime rule?” then see our previous e-alert by clicking here: What is the Overtime Proposal and Why Should I Care?)  The OMB’s review of a proposed rule generally takes 30 days. This means the DOL could issue the final rule by mid-April, with an effective date as early as June. The DOL’s urgency might be due to the Congressional Review Act.  This law empowers Congress to review any new federal regulation issued by government agencies and to overturn it within 60 days.  The president can then veto the act by Congress, thus saving the regulation.  Normally, the Congressional Review Act has no teeth because the sitting president generally supported the rule in the first place. However, in this situation, while Obama will certainly veto any action by Congress to invalidate the proposed overtime rule, the new Republican president most certainly will not. According to the Congressional Research Service, if the DOL’s overtime rule isn’t released by May 16, the rule could be at the mercy of the new president. We will keep you informed as to new developments. 

Supreme Court of Wisconsin Opens a Can: Rules Against Hormel in Donning and Doffing Case

Posted on March 2, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

On March 1, 2016, the Supreme Court of Wisconsin issued its opinion in UFCW Local 1473 v. Hormel Foods Corporation.  This is a pre-shift “donning” [putting on required clothes/equipment] and post-shift “doffing” [taking off required clothes/equipment] wage and hour case.  The workers and their union argued that time spent “donning” and “doffing” at Hormel’s canning facility in Beloit, Wisconsin, is compensable time under Wisconsin wage and hour laws.  The claim in this case is that this “donning” and “doffing” time—5.7 minutes per workday [approximately 24 hours each year]—was not accounted for each day at the canning plant, resulting in workers working more than 40 hours per workweek without receiving overtime pay.  Hormel raised two common defenses in cases such as this [(1) non-compensable preliminary and postliminary activities and (2) de minimis time]—to no avail.  According to the Court, the “donning” and “doffing” time, “brought Hormel into compliance with federal food and safety regulations and was integral and indispensable to sanitation and safety in the employees' principal work activities, namely food production.”  For this reason, the Court concluded that such time could not be reasonably characterized as non-compensable, as Hormel advocated.   The Court also opined that the wages involved were not “trifle,” and thus, could not be exempted as de minimis time. According to the Court: Hormel's Work Rules require employees to wear Hormel-provided hard hats, hearing protection, and eye protection. All exposed head and facial hair must be covered by a hair net. Employees are to wear clean and sanitary footwear at all times. Clothing is provided by Hormel and must be changed daily or more often (as good sanitation practices dictate) and shall not be worn outside the plant. Hormel leases the clothes from Aramark, which picks up worn clothes, launders them, and drops off clean clothes. Perhaps the most interesting aspect of the opinion, however, involved the union’s claim that time workers spent “donning” and “doffing” in order to leave the manufacturing campus for lunch, deprived such employees of a bona fide meal break, and converted such meal breaks into compensable, on-duty lunch breaks.  The union claimed that the “donning” and “doffing” activities cut into the workers’ off-duty, 30-minute breaks, and thus, employees were not completely relieved from duty during this time period.  The lower court found this argument to be persuasive.  The Supreme Court, however, would not affirm the lower court’s endorsement of the union’s argument—but instead left this question open for another day, in another case.   Here, the parties had previously stipulated to a nominal damages award to resolve this issue—the Court treated that settlement as outcome determinative, without definitively addressing whether the “donning” and “doffing” time nullified the bona fide meal breaks and made the 30-minute period compensable.  In light of this decision, Wisconsin manufacturing employers are encouraged to reexamine “donning” and “doffing” practices—especially those that may cut into a worker’s bona fide, 30-minute meal break.

Is Your Website Discriminatory?

Posted on March 22, 2016, Authored by Dean R. Dietrich, Filed under Employment

Yes, there have now been a number of lawsuits filed over whether or not a company’s website is accessible under the Americans With Disabilities Act.  In many of these cases, the Department of Justice has joined in the lawsuit seeking to enforce Title III of the Americans With Disabilities Act.  Companies are now considering whether or not they have a properly accessible website that does not discriminate against individuals with a disability. Title III of the Americans With Disabilities Act prohibits public accommodations from discriminating against an individual on the basis of a disability.  A number of businesses are considered public accommodations such as businesses that are engaged in retail sales or providing of professional services.  Hotels and motels are another type of public accommodation as well as educational institutions and entertainment and exhibition facilities.  Others may be considered public accommodations but there has not been a lot of litigation over that definition. If a business is considered a public accommodations business, it is obligated to insure that its place of business allows for the “full and equal enjoyment” of the goods and services offered by the public accommodation for individuals who suffer from a disability.  This is being interpreted that businesses that are considered public accommodation businesses must make sure their website promoting their business is equally accessible to anyone accessing the website whether or not the individual has a disability. It is also not clear what is meant by having a website that is accessible.  Some suggestions include the use of closed captioning and other types of communication assistance when the website shows video or audio components as part of its communication to the public.  Other examples include making sure the website is fully functional for an individual accessing the website by a keyboard so that it operates on a timeline that allows sufficient time for someone to read and use the content of the website.  It is also suggested that the content on the website must be easily understood and readable for individuals who may suffer some type of disabling condition. One of the main issues to be litigated is whether a website is considered a place of the public accommodation business and thereby subject to the ADA requirements.  The Department of Justice will not be issuing regulations on this topic until 2018 so in the meantime, allegations are made and lawsuits are filed challenging the accessibility of a company’s website.