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Searching for Articles published in January 2018.
Found 9 Results.

Settling Discrimination Complaints in Wisconsin

Posted on January 17, 2018, Authored by Dean R. Dietrich, Filed under Employment

A recent decision from the Wisconsin Labor and Industry Review Commission has placed a cloud over the settlement of discrimination complaints in Wisconsin.  The cloud may not be very dark, but it is a matter that needs to be considered by employers when they pursue an effort to settle a discrimination complaint brought by an employee. In the recent decision of Xu v. Epic Systems, Inc., the Labor and Industry Review Commission (LIRC) held that an employee may not waive the filing of a discrimination complaint against his/her employer under the Wisconsin Fair Employment Act and an employer can pursue a claim under the Wisconsin Fair Employment Act even though the employee has agreed to release all claims against the company.  Before you shutter in amazement, this ruling is actually consistent with rulings at the federal level and means that any settlement of a discrimination complaint cannot prohibit the employee from pursuing a claim of discrimination or talking to the enforcement agency, although the settlement agreement can clearly indicate that the employee is not entitled to recover any type of damages (monetary or otherwise) and cannot be reinstated to employment if successful in a ruling from the Equal Rights Division. I realize this does not make any sense; however, it is a quirk of both the federal and state law.  An employee cannot waive their right to bring a claim under the Wisconsin Fair Employment Act, but the employee can waive any right to recover money such as back wages or front pay and can waive the right to reinstatement to employment even though the Equal Rights Division would rule in favor of the employee.  This concept stems from federal court cases where it has been held that any settlement with the Equal Employment Opportunity Commission cannot include a provision that prohibits the employee from pursuing a claim or bringing information to the EEOC because the EEOC is charged with enforcing discrimination laws against employers.  So we’re not saying that you should not settle discrimination complaints but rather we’re saying that you have to put a specific provision in the Settlement Agreement that clearly indicates the employee may not pursue a claim for monetary damages or reinstatement to employment.  This will likely discourage most employees from pursuing a claim although some employees want to have some sort of negative ruling against the company just to “save face.” Employers need to understand that the ability to settle and completely eliminate the potential of a lawsuit before the Equal Rights Division is hampered by these rulings although there is still good reason to consider settlement of discrimination cases especially when there is little value to the claim being brought.

What Does New Employee Handbook Standard Mean?

Posted on January 12, 2018, Authored by Dean R. Dietrich, Filed under Employment

Attorney Bob Reinertson wrote recently about a decision of the National Labor Relations Board that significantly changed how the NLRB will review workplace policies and employee handbooks to determine whether they are in compliance with federal law.  The issue has always been that workplace policies (normally included in an employee handbook) may not interfere with an employee’s rights protected by the National Labor Relations Act.  Recent decisions by the NLRB have significantly modified the outlook from the NLRB as to what types of policies a company can adopt and whether those policies would interfere with employee protected rights.  The past Board decisions focused on whether the language could be interpreted in any fashion to in some way create an employee’s perception that the company is trying to limit their rights to communicate about working conditions. The recent decision from the NLRB has adopted a new test that will be used by the Board in determining whether or not a company policy or workplace rule violates the National Labor Relations Act.  This new test indicates that the Board will evaluate two specific criteria when looking to determine whether or not a particular workplace policy or rule will potentially interfere with the exercise of employee rights.  The two criteria are: The nature and extent of the potential impact the workplace policy or rule would have on employee protected rights; and Whether there are legitimate justifications associated with the rule that would override or supersede any concerns about the potential impact on the employee exercise of protected rights. These two criteria will be looked at very closely by the Board and its agents if a complaint is filed regarding a workplace policy or a provision included in a company employee handbook.  This seems to be a balancing of the importance of no restrictions on employee protected rights and the right of a company to create workplace policies or rules necessary for management of the business setting. In the end, the Board indicated that there would be three different categories of employment policies or employee handbook provisions that would result from this new balancing test.  Those categories are: Company policies or rules that will be considered lawful because the rule (as reasonably interpreted) does not prohibit or interfere with the exercise of employee rights or the potential adverse impact on employee rights is outweighed by the justifications associated with the rule or workplace policy; Company policies or rules that require more individualized review and scrutiny to determine whether the rule interferes with the exercise of employee rights and whether that interference is outweighed by legitimate business justifications for the rule; Company policies or rules that are deemed unlawful because they interfere with employee rights and the interference outweighs any company justification provided for the implementation of such a rule in the workplace. This new weighing process provides more opportunity for a company to justify why they have implemented a particular company rule or workplace policy that addresses employee conduct in the workplace.  The weighing process that will be used by the Board gives equal consideration to protecting employee rights and the importance of a company implementing work rules that allow the company to regulate the conduct of its employees in the workplace for legitimate business reasons.  Companies should spend the time making sure they have justification for any work rule or workplace policy that is necessary for addressing employee conduct in the workplace.

Conference of State Bank Supervisors Urges Federal Regulators to Simplify Regulatory Capital Rules

Posted on January 5, 2018, Authored by Benjamin E. Streckert, Filed under Banking and Financial Matters

On September 27, 2017, the FDIC, the Federal Reserve, and the OCC (the “Agencies”) issued a proposed rule that simplifies the compliance requirements of the existing regulatory capital rules and is intended to reduce the regulatory burden imposed by it. Developed with small- and medium-sized banks in mind, the proposed rule would: replace the complex definition of high volatility commercial real estate exposures in the standardized approach capital framework with a more straightforward definition for higher-risk acquisition, development, or construction loans called high volatility acquisition, development, or construction; simplify the threshold deduction treatment for mortgage servicing assets, temporary difference deferred tax assets not realizable through carryback, and investments in the capital of unconsolidated financial institutions; and simplify the limitations on minority interest includable in regulatory capital. The Conference of State Bank Supervisors (the “CSBS”) recently submitted a comment letter on the proposed rule. The letter commends the Agencies’ desire to simplify the regulatory capital rules but argues that the proposed rule does not do enough. In the CSBS’s words, “[t]he staggering complexity of the current regulatory capital rules imposes an unsustainable burden on community banks” and “fail[s] to increase the risk-sensitivity of the capital rules for community banks.” Further, it argues that the “sheer complexity of the capital rules . . . may cause smaller . . . institutions to forego advantageous opportunities due to the uncertainty surrounding their treatment under the . . . capital rules.” Accordingly, the CSBS proposes that the Agencies develop a simplified capital framework for smaller, community banks that would streamline the methodology for calculating risk-weighted assets. The CSBS suggests eliminating or consolidating exposure categories and risk weights intended to capture activities in which “non-complex” financial institutions do not routinely engage. This would ease the burden of implementation costs related to establishing new systems and hiring and training personnel to navigate categories of assets or exposure that community banks rarely encounter. The CSBS also proposes other solutions to the growing regulatory burden that are particularly tailored to benefit community banks. Although the CSBS’s letter is only a comment to the Agencies’ proposed rule, it does show that regulatory concerns specific to community banks are being brought to the attention of the federal regulators.

The New Tax Law Provides Estate Planning Opportunities

Posted on January 22, 2018, Authored by Shanna N. Yonke,

Shortly before Christmas, Congress approved and President Trump signed into law the Tax Cut and Jobs Act.  The new law increases the federal estate, gift, and generation-skipping transfer tax exemptions from $5 million to $10 million, adjusted for inflation.  The inflation-adjusted exemption amount for 2018 has not yet been released by the IRS, but commentators are predicting the amount will be $11.2 million.  With proper planning, married couples may combine their exemptions, resulting in a collective $22.4 million of assets that may transfer free of federal estate, gift, and generation-skipping transfer tax. The new law is effective starting in 2018.  However, the new law is not permanent; its provisions expire after 2025.  Absent further Congressional action, the federal estate, gift, and generation-skipping transfer tax exemptions will revert back to $5 million, adjusted for inflation, when the law sunsets at the end of 2025.  Accordingly, the new law provides a window of opportunity for wealthy individuals and couples to utilize the doubled exemption amount between 2018 and 2025. Consider capitalizing on the doubled exemption amount by: Making lifetime gifts up to $11.2 million per individual, or $22.4 million per married couple.  The best vehicle for these gifts is an irrevocable creditor-protected trust that incorporates generation-skipping transfer tax provisions, sheltering the assets from creditor claims and transfer taxes for future generations of your family to the greatest extent possible. Simplifying your existing estate planning documents.  The lower exemption amount necessitated complex planning to minimize or eliminate the estate tax.  Given the doubled exemption amount, these complex provisions of your existing estate planning documents may be simplified, while still incorporating flexibility to manage the future reversion to the lower exemption amount in 2025. Contact any attorney in Ruder Ware’s Trusts & Estates Practice Group to discuss how you can take advantage of the new law.

Protect Your Assets - Medical Assistance & Long-term Care Planning - Eau Claire, WI

Posted on January 8, 2018, Authored by ,

The Need for Planning Who Is Eligible for Medical Assistance Planning?  Protection of the House and Vacation Home  Permitted Transfers of Assets  Using Trusts to Protect Your Assets This seminar is presented at no charge - refreshments are included. It is offered at both 9:00 a.m. and 5:30 p.m. Please specify a time when registering. Holiday Inn 94 South, 4751 Owen Ayres Ct, Eau Claire, WI  To register, please contact Angie Mothes at 715.834.3425 or amothes@rudeware.com

Protect Your Assets - Medical Assistance & Long-term Care Planning - Wausau, WI

Posted on January 8, 2018, Authored by ,

The Need for Planning Who Is Eligible for Medical Assistance Planning?  Protection of the House and Vacation Home  Permitted Transfers of Assets  Using Trusts to Protect Your Assets This seminar is presented at no charge - refreshments are included. It is offered at both 9:00 a.m. and 5:30 p.m. Please specify a time when registering. To register, please contact Shannon Jacobson at 715.845.4336 or sjacobson@rudeware.com Holiday Inn & Suites, 1000 Imperial Dr, Rothschild, WI

The Next Step toward Open Government – Preserving Text Messages

Posted on January 2, 2018, Authored by Dean R. Dietrich, Filed under Local Governments and School Districts

The Wisconsin Public Records Board is looking into the next step in preserving open government, which is how to save text messages and social media messages authored by local government officials.  The Public Records Board recently issued a press release stating that it was looking to develop new guidelines that would be used by government officials in dealing with text messages and social media messages.  The Chair of the Public Records Board stated that local government officials should not be using text messages for communicating about public business if the local government unit does not have a platform to manage and store the text messages or store social media statements used by the local government officials. As the future use of technology expands, local government officials will have to address how they are going to use these new forms of media and what steps need to be taken to preserve the integrity of local government by capturing and storing theses different types of communication.  Originally, there was a suggestion that text messages and social meeting commentary would be considered “transitory records” and would not be subject to the requirement for maintenance of a public record under the Wisconsin Public Records Law.  This theory was not well received and has not been implemented so local government officials need to be very concerned about how they communicate through text messaging and social media comments and take efforts to preserve the integrity of those communications.  The local government unit needs to consider purchasing appropriate services that would capture these communications and preserve them as a public record.  On a different front, the Attorney General for the state of Missouri has recently launched an investigation into the actions taken by the Governor and his staff of allegedly destroying public records by using a particular app that erases text messages.  It is alleged that the Governor and senior staff have been using an app called “Confide” which destroys text messages after they have been read and prevents anyone from saving or forwarding a text message or taking a snapshot of a text message to preserve it.  The investigation is underway as an effort to determine whether or not the Governor and his staff are violating the state’s Public Records Law.  While there are no reports of this type of behavior in Wisconsin, it is another example of how the use of technology and the various ways to communicate in today’s world can become a problem for local government officials.  More to come on this topic.

Using Prenuptial Agreements to Protect the Family Farm

Posted on January 8, 2018, Authored by Melissa S. Kampmann, Shanna N. Yonke, Filed under Ag-Visor

The family farm is a special asset. The family may have worked hard through decades, maybe even generations, to accumulate and develop the farm’s land, equipment and livestock. The children may be grown and successors to farming operations. The older generation may be worried what would happen to the farm if a child were to divorce or die. The best form of protection is for children to execute prenuptial agreements to protect the farm and income in the event of divorce or death. Wisconsin law classifies most property of spouses as marital property, with the following exceptions: property owned by a spouse as of the marriage date; gifts and inheritances received by a spouse; assets acquired with the proceeds of individual property; appreciation in the value of individual property; and some personal-injury awards. In order for any of the above-listed properties to maintain their individual-property classification, the property cannot be mixed with marital property unless the individual-property component of the mixed property can be traced. That can be an issue because income earned on individual property is marital property and often reinvested into the individual property, resulting in a mixed asset. For example, a farmer gifts a child money that is invested. Interest and dividends are earned on the investments and reinvested into the account. The interest and dividends are marital property. When they are reinvested into the individual-property account, the investment account becomes a mixed asset. It can be difficult to trace the source of assets in that case, making it difficult during a divorce or death to protect the gifted or inherited property. A child and his fiancé may enter into a prenuptial agreement to alleviate those issues. The agreement allows the child and fiancé to create their own rules regarding classification of assets and division of assets in the event of divorce or death. By signing a prenuptial agreement, a child can protect the family farm and ensure preservation of the farm possibly for many more generations to come. There are a few requirements for a prenuptial agreement to be enforceable. Both parties must disclose their assets and liabilities, and exchange copies of their most recent tax returns. Both parties must sign the agreement freely and voluntarily, which means each person is represented by his or her own attorney and has adequate time to review the agreement. The division of property upon termination of marriage by divorce or death must be fair and equitable to both parties, considering both current circumstances and those reasonably foreseeable. In the context of family farms, it’s common to classify current and future ownership interests in the farm as individual property, as well as classify any income generated from the farm as individual property to prevent a mixed asset. In the event of divorce, prenuptial agreements involving the family farm usually provide that ownership interest in the farm will not be subject to property division but rather will be allocated to the farming child. There is a chance the child may be required to pay spousal support or maintenance based upon the amount of income generated from the farm. However a prenuptial agreement may also address the waiver of maintenance or a cap on the amount of maintenance. On the other hand the marriage can be terminated by a child’s death but with his spouse surviving. The child may have agreed to transfer his ownership interest in the farm to a trust for the spouse’s benefit over the spouse’s remaining lifetime or until the occurrence of some stated contingency, such as the spouse’s remarriage. Implications of prenuptial agreements need to be carefully considered with legal and tax advisers. The benefit of protecting the family farm should be weighed against any “side effects” of classifying property as the individual property of one spouse. For instance, individual property will not benefit from a basis adjustment upon the death of the non-owning spouse, which may impact the amount of income tax on the disposition of such property between the death of the non-owning spouse and the death of the surviving spouse. In a stable long-term marriage, spouses may choose to amend their prenuptial agreement in order to take advantage of the basis adjustment if there is significant appreciation in the value of property formerly classified as individual property by the agreement — particularly if the spouses anticipate disposing of such property before the death of the surviving spouse. Anyone who is part of a multi-generation farm and is contemplating marriage should consider a prenuptial agreement to protect the family farm.   © 2018 Agri-View.  Madison, WI.  Reprinted with permission.

Mental Health Disabilities – What to Do?

Posted on January 18, 2018, Authored by Dean R. Dietrich, Filed under Employment

We are seeing a growth in disability claims based upon mental health conditions which is very troubling for employers because it is hard to understand whether an employee actually has a mental health condition and it is certainly hard to quantify how that condition impacts the performance of the employee.  A recent decision from the Seventh Circuit Court of Appeals has given some helpful guidance to employers on how to deal with claims of mental health disability. In a recent decision involving the Illinois Department of Transportation, the Seventh Circuit held that an employer could require an employee to undergo a mental health examination based upon the behaviors exhibited by the employee in the workplace.  In this case, the employee exhibited a great deal of unusual behaviors, including sending e-mail correspondence to the local union representative referencing some type of a death threat to other employees in the workplace.  This prompted the employer to ask the employee to undergo a fitness for duty examination.  As part of the examination, a referral was made to a further examination by a psychiatrist because of the behaviors exhibited by the employee. Ultimately, the Court held that it was reasonable for the employer to require the employee to undergo a psychiatric examination because there was significant concern that the medical condition (mental health) of this employee impaired the ability of the employee to perform the essential functions of her job and possibly posed a threat to others because of the medical condition.  The Court held that obtaining information to determine whether there was a potential threat to other employees was an appropriate business necessity that justified the mental health examination and therefore held that the examination by the psychiatrist was job-related.  The Court held that the employer did not violate the Americans with Disabilities Act when requesting this psychiatric evaluation. While this decision allows some flexibility for companies to assess the mental health of its employees, everyone must be careful to only seek a medical examination that is directly related to a reasonable belief that the employee cannot perform the essential functions of the job or may pose a direct threat to other employees.  The ability to require a mental health examination is available, but it must be very carefully used in those situations where the conduct of the employee raises significant concerns about the employee in the workplace.