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Searching for Articles published in April 2016.
Found 7 Results.

Is Obesity a Disabling Condition?

Posted on April 14, 2016, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the 8th Circuit Court of Appeals addressed whether obesity automatically qualifies as a disability under the Americans with Disabilities Act.  In a decision filed by an applicant for employment who was ultimately denied employment because of his severe weight and body mass index, the Court of Appeals held that obesity (in and of itself) was not a covered condition under the Americans with Disabilities Act.  The 8th Circuit Court of Appeals held that the company could deny employment to an individual who was otherwise qualified to perform the job because of his obese weight because the weight was not considered to be the result of another psychological impairment.  The Court held that an individual’s weight is generally a physical characteristic that qualifies as a physical impairment but only if it falls outside the normal range of acceptable weight and it is the result of a psychological disorder.  Both of these requirements have to be met in order for an individual to be considered suffering from a disability.  If weight is considered outside the normal range but is not the result of some type of underlying psychological condition or disorder, the weight itself would not cause an individual to be considered disabled and therefore protected.  The company was able to show the morbid obesity of the applicant was a physical characteristic but it was not based upon some sort of psychological condition such as diabetes or a mental health disorder and therefore the applicant was not considered protected under the Americans with Disabilities Act.  This is a major victory for employers because it allows the employer to assess whether an individual has some type of a psychological disorder that has resulted in the morbid obesity instead of having to consider an individual as a disabled person simply because of the excess weight of the person.  Many courts have been leaning toward a requirement that morbid obesity be considered a disability in and of itself without linkage to some type of psychological condition.  Employers must be careful, however, to not “perceive” the obese person as having an impairment which could provide protection under the ADA.  Employers should have specific guidelines as to what levels of obesity would be acceptable for positions that are being filled by the company.  For now, employers have some ability to make employment-related decisions without being automatically considered to be in violation of the ADA. 

Annual CWSHRM Human Resources & Labor Law Conference - 2016

Posted on April 6, 2016, Authored by ,

Holiday Inn and Suites 1000 Imperial Dr Rothschild, WI  Additional information on presentations and speakers is available on CWSHRM’s website. Included in the event registration fee is a continental breakfast starting at 7:30, and a plated lunch choice of Lemon Pepper Cod or Cranberry-Glazed Roast Breast of Chicken. $150 for CWSHRM Members $175 for non-CWSHRM Members $60 for full-time college students Seating is limited, please register early at Eventbrite. Registration deadline is March 31st. Keynote Presentation: “Reality-Based Leadership” – Ditch the Drama and Turn Excuses into Results. Learn to recreate mindsets and change an organization's culture in order to lead in a bold new way.      • Presenter - Nicole Price is VP of Training for Cy Wakeman, Inc. Since joining Cy Wakeman she has helped spread the Reality-Based message all over the U.S., Canada, and even in China. Morning Legal Workshops: The Proposed Changes to the Fair Labor Standards Act –Are You Ready? The overtime rules may be changing!! When is the proposal likely to become effective? How should changes be communicated to employees? Bring your questions! Accommodating the Injured Worker: Tips and Traps. How to comply with three laws to avoid legal claims. Sara will offer some “hypothetical” examples of how to assess accommodation and avoid litigation under each law.      • Presenter – Sara Ackermann – Ruder Ware Attorney Afternoon Legal Workshops: Bullying in the Workplace - What Can You Do To Protect Your Employees? How can employers ensure a safe workplace?      • Presenter – Dean Dietrich, Ruder Ware Attorney Keeping Your Friends Close and Your Employees Closer- Surveillance of Employees In and Out of the Workplace “Do’s” and “Don’t” of employee surveillance, whether the activity is Facebook or the breakroom.      • Presenter – Kevin Terry – Ruder Ware Attorney Closing Presentation: “Reality-Based Accountability” – Hardwiring Accountability into Your Workforce. Nicole Price returns in the afternoon to break down the core competency of personal accountability and offer a plan for coaching and developing accountability at all levels.

NLRB Blogs

Posted on April 13, 2016, Authored by Dean R. Dietrich, Filed under Employment

I have written a number of blogs regarding the position of the National Labor Relations Board relating to protected speech for employees.  The NLRB and its General Counsel have been very aggressive in concluding that the conduct of employees should be considered protected free speech and an employee may not be terminated for such conduct.  Rulings have gone so far as to conclude that a ranting by an employee using foul language would still qualify as protected speech and the employer could not terminate the employee for that conduct.  Several events over the last month have turned the tables somewhat on the NLRB.  The Regional Director for the NLRB located in Philadelphia was suspended without pay for thirty days at the end of December because of his ties to a pro-union fund that was used to “educate and inspire the next generation of law students to become advocates for workplace justice.”   Known as the Peggy Browning Fund, this non-profit organization works to encourage law students to be advocates for pro-employee rights and union rights.  After complaints were raised to the Congressional delegation from the Philadelphia area, the Regional Director was suspended for a period of 30 days for his connection to this non-profit organization. Further, a recent communication to Regional Directors acknowledged the NLRB was facing a budget shortfall for the rest of the fiscal year (through September 30) and suggested a number of cost saving measures that would make the Agency more flexible in settlement negotiations with an employer.  In other words, the NLRB is in need of money so it may be willing to compromise a case if the employer agrees to pay certain amounts of money.  It is even suggested the NLRB will be more flexible in determining what type of back pay would be given to employees if there is a conclusion that an unfair labor practice charge will be filed.  The memo also suggests the NLRB agents should use alternate investigative methods such as telephone affidavits and video conference interviews instead of in-person interviews when investigating a complaint of unfair labor practices.  The NLRB, of course, says these strategies will not change the enforcement authority of the Board but perhaps the investigators will become more understanding of the employer position because of this need to reduce expenses. Employers should not rely upon the potential change in investigative techniques to assume success but perhaps the Board will be more understanding and willing to consider the employer position going forward.

What Does ADA Accessible Mean?

Posted on April 4, 2016, Authored by Dean R. Dietrich, Filed under Employment

In a recent blog, I wrote about the potential of litigation requiring a business to make its website ADA accessible.  I noted that it is still not clear what a business may be required to do under this legal argument.  A recent court decision in California has not clarified what a business may be required to do but it has certainly identified the heavy price tag that could apply if the website is not accessible. A luggage retailer that sold luggage on its website was required to pay $4,000 to the plaintiff and pay in excess of $100,000 in attorneys’ fees based on a finding that the website of the business was not ADA accessible.  There was no indication in the court decision as to what steps needed to be undertaken to make the website accessible for someone who was visually impaired although the complaint seemed to suggest that the website was not designed to be read by screen-reading software that a blind person would use to help read printed materials on a website.  In a very brief decision, the California trial court held that the company had to pay $4,000 to the plaintiff and take steps to make its website more readily accessible to visually impaired persons.  The court also ordered the company to pay more than $100,000 in attorneys’ fees to the plaintiff as part of the remedy provided by the court. This is a trial court decision that may or may not be appealed but it shows the potential for claims that a company website is not ADA accessible and therefore in violation of Title III of the Americans With Disabilities Act.  Companies (and local governments) need to look at this issue and consider if changes should be made to make its website more useable by a disabled person.

Eau Claire Employment, Benefits & Labor Relations Law Conference - Spring 2016

Posted on April 4, 2016, Authored by ,

Please contact: Teresa Meier  tmeier@ruderware.com (715) 834.3425 Holiday Inn South 4751 Owen Ayres Court Eau Claire, WI Registration: 7:30 a.m. Welcome and Introductions: 8:00 a.m. 8:15 a.m. - 9:15 a.m. Never a Dull Moment in the Employee Benefits World! Attorney Mary Ellen Schill Update on ACA, impact of Supreme Court same sex marriage decision on benefit plans, and whatever else is keeping us up at night. Break: 9:30 a.m. - 10:30 a.m. 10:30 a.m. - 10:45 a.m. One Rightsize Fits All:  What You Need to Know About Game-Changing Rule Changes to Overtime, Independent-Contractor Relationships, and Contingent Workforce Relationships Attorneys Bryan Symes and Kevin Terry In this session, Bryan and Kevin will walk attendees through the Department of Labor’s long-anticipated, proposed rule changes governing overtime and the so-called “white collar” exemptions [including proposed changes to the salary level test, possible changes to the “duties” tests, current “white collar” exemptions, and Wisconsin-specific wrinkles], the Department of Labor’s increased agency scrutiny of independent-contractor relationships and employee misclassification, and the National Labor Relations Board’s controversial “joint employment” standard and how this standard impacts the franchise model and the contingent workforce. Break: 10:30 a.m. - 10:45 a.m. Morning Workshops (Choose One) 10:45 a.m. - 11:45 Walking the Pre-Hire Tightrope:  Tips and Traps! Attorneys Sara Ackermann Employment laws and regulations are constantly changing. Mistakes made during the hiring process can cause big legal trouble for unwary employers. Medical inquiries, criminal background checks, arrest and conviction records, social media snooping, drug testing, and noncompete agreements are all areas where human resources professionals must proceed with caution. Sara’s presentation will give you the “balance” you need so YOU can avoid the “fall” into the courtroom. "Banging on the Drum All Day":  Dealing With Leaves of Absence and Unavailability for Work Attorney Dean Dietrich Companies have experienced a growing portion of their workforce asking for time off or claiming the need for time off in order to address illness or family matters. Employers struggle with the requirement to comply with the Federal and State Family Medical Leave Act as well as the accommodation requirements under the Americans With Disabilities Act and Wisconsin Fair Employment Act. This program will address employer obligations under these various laws and identify strategies to be used to prevent employees from taking advantage of extra time off. Remember the song, “I Don’t Want to Work – I Want to Bang on the Drum All Day”? Lunch and Networking Noon - 1:00 p.m. During lunch, our panel of attorneys will invite you to ask questions. Feel free to bring your "hypothetical" questions and try to stump the experts! See our brochure for more details. HRCI credit - 3 hours HR (General).

Eau Claire Employment, Benefits & Labor Relations Law Conference - 2016

Posted on April 7, 2016, Authored by ,

Registration: 7:30 a.m. Welcome and Introductions: 8:00 a.m. 8:15 a.m. - 9:15 a.m. Never a Dull Moment in the Employee Benefits World! Attorney Mary Ellen Schill Update on ACA, impact of Supreme Court same sex marriage decision on benefit plans, and whatever else is keeping us up at night. Break: 9:15 a.m. - 9:30 a.m. 9:30 a.m. - 10:30 a.m. One Rightsize Fits All:  What You Need to Know About Game-Changing Rule Changes to Overtime, Independent-Contractor Relationships, and Contingent Workforce Relationships Attorney Kevin Terry In this session, Kevin will walk attendees through the Department of Labor’s long-anticipated, proposed rule changes governing overtime and the so-called “white collar” exemptions (including proposed changes to the salary level test, possible changes to the “duties” tests, current “white collar” exemptions, and Wisconsin-specific wrinkles), the Department of Labor’s increased agency scrutiny of independent-contractor relationships and employee misclassification, and the National Labor Relations Board’s controversial “joint employment” standard and how this standard impacts the franchise model and the contingent workforce. Break: 10:30 a.m. - 10:45 a.m. Morning Workshops (Choose One) 10:45 a.m. - 11:45 a.m. Walking the Pre-Hire Tightrope:  Tips and Traps! Attorney Sara Ackermann Employment laws and regulations are constantly changing. Mistakes made during the hiring process can cause big legal trouble for unwary employers. Medical inquiries, criminal background checks, arrest and conviction records, social media snooping, drug testing, and noncompete agreements are all areas where human resources professionals must proceed with caution. Sara’s presentation will give you the “balance” you need so YOU can avoid the “fall” into the courtroom. "Banging on the Drum All Day":  Dealing With Leaves of Absence and Unavailability for Work Attorney Dean Dietrich Companies have experienced a growing portion of their workforce asking for time off or claiming the need for time off in order to address illness or family matters. Employers struggle with the requirement to comply with the Federal and State Family Medical Leave Act as well as the accommodation requirements under the Americans With Disabilities Act and Wisconsin Fair Employment Act. This program will address employer obligations under these various laws and identify strategies to be used to prevent employees from taking advantage of extra time off. Remember the song, “I Don’t Want to Work – I Want to Bang on the Drum All Day”? Lunch and Networking Noon - 1:00 p.m. During lunch, our panel of attorneys will invite you to ask questions. Feel free to bring your "hypothetical" questions and try to stump the experts! See our brochure for more details. 3 HR General hours HRCI credit is approved Holiday Inn South 4751 Owen Ayres Court Eau Claire, WI  54701 Please contact: Angela Mothes at amothes@ruderware.com (715) 834-3425

Repeated Inadvertent Errors Do Not Constitute “Substantial Fault” For Unemployment Insurance (Or For Worker’s Compensation)

Posted on April 25, 2016, Authored by Russell W. Wilson, Filed under Employment

“Substantial fault” is a new concept that may determine whether a terminated employee is eligible for unemployment insurance benefits.  In 2013 the Wisconsin Legislature amended the unemployment insurance eligibility statute to create “substantial fault” as a basis to deny benefits; the new law took effect on January 5, 2014.  On April 14, 2016, the Wisconsin Court of Appeals issued the first judicial decision that interprets the meaning of “substantial fault.”  Operton v. Labor and Industry Review Commission, 2016 WL 1552178.  Moreover, the new amendments to the worker’s compensation act took effect on March 2, 2016, that govern eligibility for continued temporary total disability (“TTD”) benefits where an employee returns to work under a light duty program while still in the healing period.  If the employee’s employment is suspended or terminated during this time for “substantial fault” (or for “misconduct”) as set forth under unemployment insurance, TTD payments may be ended. In Operton the employee had been fired for having made eight cash transaction errors for a retail business over the course of twenty months of employment.  The employee had been warned of the consequences of continued cash transaction errors.  During the period of employment the employee handled about 80,000 transactions, which meant that about “99.99 %” of the transactions had been correctly performed.  The eight instances of nonperformance were instances of “errors” or “mistakes”; they were not deliberate or intentional. The unemployment insurance statute defines “substantial fault” as “acts or omissions of an employee over which the employee exercised reasonable control” that are subject to three specific independent exceptions that do not constitute “substantial fault”: One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction; One or more inadvertent errors made by the employee; Any failure of the employee to perform work because of insufficient skill, ability, or equipment. The Labor and Industry Review Commission (“LIRC”) had determined that the employer demonstrated “substantial fault” so as to make the employee ineligible for unemployment insurance benefits.  The Court of Appeals analyzed each of the three exceptions to “substantial fault” and reversed LIRC’s decision.  First, the court noted that exception number 1 applies to “infractions,” not “inadvertent errors.”  Unlike “inadvertent errors,” “infractions” may constitute “substantial fault” if the “employer warns the employee about the infraction.”  The evidentiary record established that the employer had repeatedly issued warnings; however, the record was silent as to whether the employee had committed any kind of infraction.  The employer had offered no evidence that what were offered into evidence as “errors” constituted “infractions.”  Nor did the court of appeals provide any guidance as to what conduct or omissions would constitute an “infraction.” Second, the court unequivocally ruled that exception number 2 is applicable because the Wisconsin Legislature determined that “[r]epeated inadvertent errors do not statutorily morph into ‘infractions’ if warnings have been given.”  In other words, no amount of warnings can remove “inadvertent errors” from exception number 2 to the definition of “substantial fault.”  Finally, exception number 3 did not apply on the basis of “insufficient skill, ability, or equipment.”  The court noted that the employee possessed the requisite skill or ability because she had successfully handled “99.99%” of the approximate 80,000 transactions during the period of her employment.  According to the court, the employer was well within its right to discharge the employee for failing to meet its “high expectations.”   Under the facts of this case, however, the employee met exception number 2, and therefore, was exempted from the definition of “substantial fault.” Worker’s compensation insurance carriers and employers should carefully consider the language of the three exceptions when deciding whether to suspend or terminate an employee based on  “substantial fault” after the employee returns to work on a light duty program during the healing period.  Otherwise, a claim for bad faith under the Worker’s Compensation Act could arise.