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Searching for Articles published in July 2016.
Found 6 Results.

Payment for Not Taking Benefits – Additional Compensation

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

A recent decision in the Ninth Circuit Court of Appeals has highlighted another problem with determining the rate of pay for paying  overtime hours worked by non-exempt employees.  Under the Fair Labor Standards Act, employees are required to be paid time and one-half their regular rate of pay when they work more than 40 hours in a work week.  There is often confusion regarding what is to be included in the regular rate for determining the time and one-half overtime rate.  This recent decision has held that any payments to an employee as cash reward for the employee not taking health insurance or other insurance benefits must be included as part of the regular rate calculation for that employee.  While the payment of cash-in-lieu of benefits would seem to be a benefit to that employee rather than a wage payment, this recent decision has held that the employer must include that payment (typically made on a monthly basis) as part of the regular hourly rate of pay for that employee.  In this Ninth Circuit decision, the Court of Appeals held that the City of San Gabriel was required to pay overtime pay based upon a rate that included the cash-in-lieu of benefits payment for that particular employee.  Thus, if an employer has a benefit that provides that an employee would receive additional monthly compensation if the employee does not take a benefit such as health insurance, that additional monthly payment must be included in determining the regular rate of pay for that employee and then determine the time and one-half overtime rate based upon the regular rate with that additional payment included.  This results in a different overtime pay rate for every employee depending upon whether the employee takes insurance benefits or decides not to take insurance benefits.  This seems counter-intuitive because the company payment for health insurance premiums is not included as part of the regular rate of pay for an employee but the cash payment instead of taking insurance must be included. In this lawsuit, a class action was brought by a group of employees which resulted in a significant payment being made by the city in the form of back wages for the failure to include this payment as part of the regular rate for the group of employees.  Employers should verify how they are handling this type of payment as part of their regular payroll calculations.  Employers need to consider this decision and analyze whether or not they need to adjust the overtime pay rate for certain employees if the company has this cash-in-lieu of benefit payment made to certain employees.

Collegiality in the Workplace – Not Authorized by NLRB

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

Collegiality in the workplace is the goal of every employer in order to provide the proper atmosphere for productive employees.  Many employers have taken this desire to heart by publishing rules that encourage collegiality amongst employees and prohibit conduct that would adversely affect morale in the workplace.  A recent ruling by the National Labor Relations Board in a hospital setting again throws cold water on an attempt to ensure a high level of collegiality and promote productivity in the workplace.  In the April decision of William Beaumont Hospital (363 NLRB No. 162), the NLRB struck down a number of provisions in the code of conduct used by the hospital to encourage collegiality and cooperation amongst employees in the workplace.  The NLRB found that various provisions of the code of conduct of the hospital were a violation of the Section 7 rights of its employees because the work rules tended to “chill” the employees’ exercise of their right to engage in protected, concerted activity. The NLRB found that various provisions of the code of conduct were unlawful under Section 8(a)(1) of the National Labor Relations Act.  The code of conduct prohibited such things as: conduct that “impedes harmonious interactions and relationships”; verbal comments or physical gestures directed to others that exceeded the bounds of fair criticism; negative or disparaging comments about the moral character or professional capabilities of an employee or physician made to employees, physicians, patients, or visitors; behavior that is disruptive of maintaining a safe and healing environment or that is counter to promoting teamwork. The NLRB also found that policies which prohibited the following conduct were also in violation of the NLRA: rule prohibiting employees from conduct that brings discredit on the System or Facility or is offensive to fellow employees; conduct speaking negatively about a coworker or the hospital; conduct disclosing business-related and employee information. The NLRB felt that employees would reasonably construe these particular rules of conduct to inhibit employees from expressing their opinion or engaging on concerted activity because the conduct that was addressed was so ambiguous and overly broad such that employees did not know what was acceptable behavior and what was inappropriate behavior.  As a result, the NLRB struck down these various rules of conduct as being unlawful under the National Labor Relations Act.  Employers must be careful in drafting workplace policies to provide enough clarity so a rule is not stricken if challenged before the National Labor Relations Board.

Transgender Student Files First Discrimination Suit Against Wisconsin School District

Posted on July 27, 2016, Authored by Kevin J.T. Terry,

Last Tuesday, the Kenosha Unified School District (“KUSD” or “the District) became the first Wisconsin school district to be sued under federal law by a transgender student alleging the District and its representatives have taken a series of discriminatory actions against the student based on his sex, gender identity, and transgender status. The complaint notes that, although designated a female on his birth certificate, A.W. began identifying as a male in middle school.  At the beginning of his sophomore year at Tremper High School, A.W. informed his teachers and peers of his gender identity, requesting that he be referred to using male pronouns and by a new name.  While A.W.’s complaint notes that he has been diagnosed with gender dysphoria, A.W. does not bring any cause of action based on disability discrimination.  His complaint alleges violations of Title IX and the Equal Protection Clause of the 14th Amendment regarding discrimination on the basis of sex. Allegations Raised by A.W. Included in A.W.’s complaint against the Kenosha School District and its representatives, the following six incidents of alleged discrimination were provided: Restricted access to locker room facilities  – A.W. alleges that he and his family met with representatives and requested that A.W. be permitted to use the boys’ restroom at school.  However, as alleged in the complaint, in March 2015 A.W. was informed that the District would only permit his use of the girls’ restroom facilities or the single-user, gender neutral restroom in the school office.  A.W. notes that this policy caused deep emotional distress, aggravated physical illnesses related to stress and symptoms associated with gender dysphoria, and lead A.W. to utilize the boys restroom exclusively during the 2015-2016 academic year in violation of the District’s instruction and yet with no consequences or discipline.  In May 2016, the Department of Justice and the Department of Education (jointly “the Departments”) issued a joint letter addressing their position on a number of practices related to potential discrimination based on sex in violation of Title IX.  As it relates to restroom and locker room use, the Departments’ position is that although a school may provide separate facilities on the basis of sex, they must allow students to access facilities consistent with the gender identity.  On its face, it appears the complaint alleges actions by KUSD that the Departments believe to be discriminatory. District staff monitoring restroom usage  – A.W. alleges that District administrators sent an e-mail to all of the District security guards that instructed them to notify any members of administration if they spotted students who appeared to be going in the “wrong restroom.”  A.W. believes that this e-mail was directed to his use of the restroom facilities. While A.W. does not reference any disciplinary actions or further discussion from the school security guards for his use of restroom facilities, this practice may not adhere to the Departments’ interpretation of Title IX. Use of name and pronouns  – The complaint identifies one specific member of KUSD staff who exclusively referred to A.W. by his birth name.  The individual said that the only way the school could address him with his new name and male pronouns, was if he were to have his gender changed in official school records.  As a result of the administrations’ failure to identify A.W. by his new name and male pronouns, A.W. became embarrassed and concerned about the effect of these meanings on his academic performance and ability to participate in extracurricular activities. The Departments specifically expressed that under Title IX a school must treat students consistent with their gender identity even if their education records or identification documents indicate a different sex.  Further, the Departments note that they have resolved Title IX investigations with agreements committing individual school staff and contractors to use pronouns and names consistent with a transgender student’s gender identity.  Any resolution of the matter in KUSD would likely include a similar agreement between the District and the student. Issuance of wrist bands to identify transgender students  – The complaint alleges that KUSD proposed a practice in May, 2016, utilizing a bright green wrist band to identify students who are transgender.  A.W. alleges that this practice would single out transgender students for additional scrutiny, stigma, and potentially harassment or violence.  Additionally, it would require students to violate their privacy by revealing their transgender status to others.  This practice as alleged in the complaint is to be adopted at the beginning of the upcoming school year and is still in place to the best knowledge of the plaintiff. The KUSD website indicates that the District does not have a practice or policy requiring any student to wear a wrist band for monitoring for any purpose or for any reason whatsoever.  Additionally, Districts have a responsibility to provide a safe and nondiscriminatory environment for all students. Overnight school sponsored accommodations  – A.W. participated in a five-day school sponsored summer orchestra camp from June 12 to June 16 on the University of Wisconsin-Oshkosh campus and was required to stay in a double bedroom suite by himself.  A.W. indicates that prior to the camp he had signed up to stay in a boys’ suite with one of his best friends, a male student.  The KUSD teacher accompanying students on the trip told A.W. that under Kenosha Trempers policy, he could not stay with other boys during the trip.  The teacher told A.W. he would have to stay in a suite with girls or alone in a suite.  A.W. alleges that the school’s decision was based on a perception that he might engage in sexual activity with another boy. The Departments address housing and overnight accommodations specifically in its May letter.  The Departments’ note that Title IX permits a school to provide separate housing on the basis of sex.  However, Title IX as interpreted by the Departments, requires a school to allow transgender students access to housing consistent with their gender identity and may not require transgender students to stay in single occupancy accommodations or to disclose personal information when not required of other students.  If a student requests a single occupancy accommodation, a school may honor a student’s request if it so chooses. Nomination for junior prom king – In March of 2016, A.W. alleges that KUSD staff informed him that he could be on the spring prom court, but only as a candidate for prom queen.  Students organized and participated in a sit-in at the high school’s main office to show support for A.W.  Eventually KUSD reversed its position and permitted A.W. to run for prom king.  While the Departments did not specifically address the participation in school dances in their May “Dear Colleague” letter, they noted that unless expressly authorized by Title IX, a school may not segregate or otherwise distinguish students on the basis of their sex in any school activities or the application of any school rule.  Further, a school may not discipline or exclude students from participating in activities for appearing or behaving in a manner that is consistent with their gender identity or that does not conform to stereotypical emotions of masculinity or femininity. Conclusion It is important to remember that this lawsuit does not include any alleged violations of Wisconsin’s pupil nondiscrimination statute, Wis. Stat. § 118.13.  This action filed in the Eastern District of Wisconsin is a case of first impression.  Certainly, the plaintiff believes that courts here in Wisconsin will follow the guidance from the Departments, however, at this point we do not have any case law to provide us much guidance. Districts around the state are wrestling with many difficult issues as it relates to the education of transgender students.  Most of the recent actions around the country against school districts have resulted in settlement agreements in which the District agrees to adhere to the requirements of Title IX as interpreted by the Departments and to report to the Departments its policies and progress with transgender students.  We will certainly be monitoring this lawsuit so that school districts around Wisconsin can be operating in a manner consistent with Federal law.  If you have questions regarding your School District’s policies or a specific issue with the education of transgender students, please do not hesitate to contact the author or any of the attorneys in the School Law Focus Team at Ruder Ware.

G. Lane Ware Leadership Academy Inaugural Class Soon to Begin

Posted on July 25, 2016, Authored by ,

The G. Lane Ware Leadership Academy, a new State Bar of Wisconsin program, aims to give lawyers resources, strategies, and skills to become effective leaders in the profession and community. The 2016-17 Leadership Academy takes place in three sessions, held at the State Bar Center in Madison, in November, February, and April. Topics to be covered include public speaking, interpreting financial documentation, community leadership, and networking. According to the State Bar’s site, “The program honors G. Lane Ware, one of the greatest leaders of the State Bar, and someone who was passionate about the future of this organization. Throughout his career, Lane was a leader and mentor in his community, the state, and the legal profession.” Speakers include: Dr. George Mavroulis, adjunct professor of educational leadership at Viterbo University, discussing the key traits of leaders; Natalie Fleury of Marquette Law School, discussing conflict resolution tips and techniques; Christina Plum, speaking on effective communicating in a professional setting; Hon. James Peterson, discussing the seven objectives of effective public speaking; Garry Bakke, providing insight into interpreting financial documentation; Sarah Rohne of the University of Minnesota Law School, giving tips about having a solid networking plan; Michael F. Moore, covering time management skills for successful leaders; and Dr. Julia Persike, a licensed clinical substance abuse counselor and doctor of psychology, discussing active listening and managing difficult conversations. As a former State Bar president (1989-90), Wisconsin Law Foundation president (1998-2000), and Leadership Development Committee chair (2003-07), the State Bar notes, “Lane’s commitment to leadership development is the foundation for the creation of the G. Lane Ware Leadership Fund within the  Wisconsin Law Foundation. Through a contribution bequeathed in his will, and through the generosity of so many of his friends, a designated fund continues Lane’s focus on leadership development programs.” A full description of the program can be found at this link:  http://marketplace.wisbar.org/Documents/Events/LeadershipAcademySchedule_2016.pdf

OSHA Ban on Incident-based Safety Incentive and Routine Mandatory Post-incident Drug Testing Programs Delayed

Posted on July 18, 2016, Authored by Russell W. Wilson, Filed under Employment

The date for implementation of OSHA’s ban on two programs – Incident-based Safety Incentive and Routine Mandatory Post-incident Drug Testing – has been set back from August 10, 2016, to November 1, 2016, as a result of motion practice in a legal challenge.  The ban on these programs are part of a new regulation.  The U.S. Department of Labor Occupational Safety and Health Administration promulgated “Improve Tracking of Workplace Injuries and Illnesses” as published in 81 Federal Register 29,624 on May 12, 2016, and as amended  at 81 Federal Register 31,854 on May 20, 2016.  This new rule will be codified in 29 Code of Federal Regulations Part 1904. Much of this new rule is to take effect in 2017, but the ban on Incident-based Safety Incentive Programs and Routine Mandatory Post-incident Drug Testing Programs was to have taken effect on August 10, 2016.  The National Association of Manufacturers and others filed a challenge to the new rule in the U.S. District Court for the Northern District of Texas, Dallas Division, seeking an injunction against the ban.  (Texo ABC/AGC, Inc., et al. v. Thomas E. Perez, Civil Action No. 3:16-cv-1998 (N.D. Texas)  While seeking a preliminary injunction against the ban immediately, the challengers have reserved the right to contest other portions of the new rule which are to take effect in 2017 at a later time. The plaintiffs assert a number of reasons, but the heart of the matter is the assertion that OSHA’s ban is arbitrary and capricious.  According to the plaintiffs, OSHA views incident-based safety incentive programs and routine mandatory post-incident drug testing programs as retaliatory.  They assert that safety incentive programs and drug testing programs actually make the workplace safer and should be promoted by OSHA instead of being banned.  The plaintiffs filed their emergency motion seeking a preliminary injunction and an expedited briefing schedule on July 12, 2016.  On the following day OSHA announced that the August 10 effective date would be postponed to November 1, 2016. If you have any questions regarding this post, please contact Russ Wilson.

Lateral Trust & Estate Attorney

Posted on July 28, 2016, Authored by ,

  Current Openings Are you looking for a sophisticated law practice in a family friendly community? Ruder Ware, Northern Wisconsin’s largest law firm, is seeking an experienced trust and estate planning lawyer to add to its renowned practice. Ruder Ware’s estate-planning and business-succession-planning attorneys work with the owners of large and growing middle-market companies and their businesses. We are looking for an individual for our Wausau location with two to five years experience in the estate planning area as well as business succession planning. Knowledge in business transactions and business law is a plus. The ideal candidate will have excellent writing and oral communication skills, strong social skills, a desire to be part of a thriving community, and a proven record of building client relationships. The ideal candidate also must be comfortable working as a team member, but also have the ability to work independently and possess strong problem-solving skills. We are looking for an individual who aspires to quickly become a shareholder and to integrate into the community. In addition to a competitive salary, Ruder Ware offers a complete benefit package including group health, life and disability insurance, a Section 125 flex benefit plan, a 401(k) profit sharing plan, and vacation. Ruder Ware has 40 attorneys in offices in Wausau and Eau Claire, Wisconsin. The Wausau office is located in the Dudley Tower in beautiful downtown Wausau, and each office provides spectacular views of Wausau and the Wisconsin River. For additional information please visit www.ruderware.com and www.ci.wausau.wi.us. If you are interested in joining Ruder Ware, please forward your resume and statement of interest to the address below. All applications will remain confidential. Linda Huss lhuss@ruderware.com