Second Quarter 2019

 

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In This Issue:

Quick Hits

Do You Know the Latest DOL Guidance?

Employee Wellness Program Study Results

Measles Immunizations and the Workplace

Regulatory Update

EEO-1 Reporting Deadline Is Approaching

No-Match Letters Return

FLSA Exemptions Revised. Again.

Legal Update

State Supreme Court Issues Ruling on Paid Commuting Time

Legislative Update

Paid Family Leave Gains Traction in US

Workplace Trends

(Lack of) Employee Engagement

In the News

Greetings from Walmart

Amazon's Treatment of Employees Makes Headlines Again

Links of Note

A Glass of Wine, A Loaf of Bread, and Thou (and Thou and Thou)

Strangest Thing We've Heard of Late

Employee Misfire

Published or Quoted Elsewhere:

Timing Works Out Well for Goldstein

Wisconsin Law Journal

Concealed Carry Concerns

Ozaukee Press

Packing Heat: Local Businesses Torn on Concealed Carry Law

Fox Point Patch

Social Media and the Workplace

(SBDC Front Page)

Are Unpaid Internships Legal?

(Dime Crunch)

Loose Lips Sink Ships – Things That Can Get Educators in Legal Hot Water!

(Teachers.Net Gazette)

The Focus on Misclassification

(SBDC Front Page)

Hiring in the New Economy

(SBDC Front Page)

Understanding and Bridging
the Generational Gap>

(WORK Spring, 2009)

What is the Role of an
Attorney on the Board?

(Compasspoint Board Café - February 28, 2008)

Also published in Blueavocado.org - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

(Wisconsin Lawyer - Vol. 81,
No. 2, February 2008)

Previous Issues

Quick Hits

Do You Know the Latest DOL Guidance?

The U.S. Department of Labor (“DOL”) recently published several letters intended to clarify various employer responsibilities. One DOL letter reminds that employees cannot voluntarily opt out of, or delay, Family & Medical Leave (“FMLA”). Similarly, employers may not designate more than twelve weeks of employee leave as FMLA.

Another DOL letter examines whether the hours employees spend participating in an employer’s off-duty volunteer program must be counted as hours worked under the Fair Labor Standards Act ("FLSA"). Ultimately, the DOL determined that employees need not be compensated for such volunteerism, presuming the employer’s program meets the following criteria:

  • employer does not require participation in the program and does not unduly pressure employees to participate
  • employer does not control or direct volunteer work
  • employer does not guarantee a monetary benefit to participants
  • employees who do not participate do not suffer adverse consequences (e.g., monetary penalty, disqualification from a bonus program)

Should you have any questions about administering FMLA or your company’s volunteer program, contact Julia at julia@goldsteinsc.com or 414-446-8800.

Employee Wellness Program Study Results

It’s one of the oldest debates in employment law: Do wellness programs yield results? A recent study published in the Journal of the American Medical Association ("JAMA") says no. The study which focused on one employer, BJ’s Wholesale Club, followed 33,000 employees over a year and a half. The results? There was no reduction in health care costs and no significant reduction in blood pressure, sugar levels, etc. What has your experience been?

Measles Immunizations and the Workplace

The recent measles outbreaks in New York, Michigan, Washington State, and elsewhere have reminded us how dangerous and virulent measles can be. They have also prompted a national discussion about immunizations.

On the one hand, there are people who question why anyone would risk their own or others' health by avoiding immunization. On the other, there are individuals who cannot get the vaccine for health reasons or who object to the vaccine because of religious or other beliefs. The bottom line is that when vaccination rates fall below a certain threshold (i.e., 93-95% or “herd immunity”), the entire community is at heightened risk.

This raises a big question about workplace safety. Can an employer insist that employees be vaccinated? Generally speaking, the answer is no (for reasons related to the Americans With Disabilities Act). There are, however, exceptions for certain workplaces, e.g., schools, nursing homes, and health care facilities and for workplaces in communities already affected (if state or local governments have declared a health emergency or taken other preventive action).

Business Takeaway: Is your workplace such that you have, or should have, an immunization requirement? If not, do you have a plan in place should there be an outbreak of some sort? If so, are your records up to date?

Regulatory Update

EEO-1 Reporting Deadline Is Approaching

The EEO-1 reporting rules require employers of 100 or more people to file pay data to enable the enforcement of equal pay laws. This includes information on job category, gender, race, and ethnicity (“component 1”) in conjunction with earnings and hours worked (“component 2”). While the reporting provisions were finalized in 2016 and intended to take effect in 2018, they were suspended in 2017. A federal judge has since reinstated them. The 2018 EEO-1 survey deadline is May 31, 2019. However, the Equal Employment Opportunity Commission ("EEOC") is presently in court arguing that the deadline should be moved to September 30, 2019.

Business Takeaway: The 2016 revisions were met with mixed reviews—while some praise the intent of the reporting changes, others are frustrated by the administrative hassle, while still others suggest the survey fails to accurately reflect the relationship between gender, race, ethnicity, etc., and pay. A reminder that if you meet the criteria to submit your company’s data, the survey is open and the deadline is closer than you might expect. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on EEO-1 reporting.

No-Match Letters Return

The Social Security Administration (“SSA”) in March resumed the practice of distributing Employer Correction Request Notices, also known as “no-match letters.”  These letters, which alert employers to employees whose W-2 information does not match SSA records, were last distributed by the SSA in 2012.

In the past, employers were quick to terminate employees on the SSA list. This is not the proper response. Employers should first check business records for simple typos or other clerical errors, notify the employee, then provide the employee ample time to resolve the issue with the SSA. This issue should not be taken lightly as the SSA may share mismatch data with Immigration and Customs Enforcement (“ICE”), prompting an audit or worse.

Business Takeaway: First and foremost, it is important to remember what a no-match letter is and what it is not. No-match letters are not proof of falsification or other wrongdoing. Do your own due diligence regarding your business records and allow the employee time to resolve the matter with SSA. More generally, make sure your I-9 forms and procedures are in order. Contact Julia at julia@goldsteinsc.com or 414-446-8800 if you have questions about no-match letters or I-9 forms and procedures.

FLSA Exemptions Revised. Again.

The DOL continues to work on updating the FLSA. In March, the DOL released a proposed rule that would increase the minimum salary threshold to qualify as (1) an exempt employee; or (2) a highly compensated employee. While the changes are less dramatic than the Obama-era proposal, they would still affect many employees (the DOL projects over one million). Another difference is that the current proposal does not include automatic adjustments to the salary threshold but simply calls for a “commitment to periodic review to update the salary threshold.” The public comment period is open until May 21, 2019.

Business Takeaway: It is far too early in the process to predict that this proposal, or any part of it, will become law, but it does offer a glimpse into the current parameters. For now, keep the terms of this proposal in mind as you make salary determinations and other decisions relative to employee compensation.

Legal Update

State Supreme Court Issues Ruling on Paid Commuting Time

In March, the Wisconsin Supreme Court ruled in Kieninger v. Crown Equipment that employers need not pay for an employee’s time spent commuting between their home and job site in a company vehicle. A seemingly definitive factor in the Crown case was that employees had the option of commuting between home and work in a personal vehicle or a company van.

Business Takeaway: At first glance, this seems to be a simple issue. However, the case worked its way up to the Wisconsin Supreme Court. This reflects what we have seen in practice relative to wage and hour laws—lots of gray areas corresponding to considerable exposure. If you have questions on compensable time (e.g., travel time, meal and break periods, etc.), or if you have any other company vehicle inquiries, contact Mark at mark@goldsteinsc.com or 414-446-8800.

Legislative Update

Paid Family Leave Gains Traction in US

Paid family leave continues to be a hot topic and may even be a factor in the 2020 election. While various congressional bills have failed to gain the necessary traction to become federal law, states such as California, Rhode Island, New Jersey, New York, and Washington, and even some municipalities, have mandated paid family leave. In 2018, 21 states were considering paid family leave laws, a number that is expected to increase in 2019.

Business Takeaway: Absent state or federal legislation, there is no legal obligation to provide paid family leave. On the other hand, SHRM’s 2018 Employee Benefits Survey reveals that approximately 27% of organizations offer some version of paid family leave. Have you considered adopting a paid family leave policy? If so, have you calculated the cost and benefits of doing so?

Workplace Trends

(Lack of) Employee Engagement

Gallup polls have tracked employee engagement since 2000, and the current ratio of engaged employees (34%) to actively disengaged employees (13%) has never been higher (2.6 to 1). On the other hand, this means more than 50% of employees are “not engaged” (the gap between “engaged” and “actively disengaged”).

One often-overlooked cause of disengagement involves personal issues away from the workplace. For instance, approximately 75% of all US employees are also caregivers for at least one dependent person. Moreover, approximately one in three employees indicated they would leave a job that interfered with their responsibilities outside the office. On the flip side, a comparatively low percentage of employers are actually aware of their employees’ caregiving duties.

Business Takeaway: While most employers continue to struggle in their efforts to attract and retain talent, there are a variety of tools available to engage employees. The first step is to measure how you are doing. Are your numbers better or worse than the Gallup survey? See Links of Note (below) or contact Mark at mark@goldsteinsc.com or 414-446-8800 with your questions about employee engagement.

In the News

Greetings from Walmart

Walmart has decided to eliminate its popular greeter position from approximately 1,000 stores in the United States. Greeters are being replaced by “customer hosts,” a position that includes physical requirements such as lifting up to 25 pounds and standing for long periods of time. While Walmart has been working to reassign greeters to other positions, many greeters cannot meet the physical requirements of the new customer host position, prompting charges with the EEOC.

Business Takeaway: This presents an interesting dilemma for one of this nation’s largest employers. A difficult, but bona fide, business decision, or something else?

Amazon's Treatment of Employees Makes Headlines Again

Amazon has been in the news previously for its warehouse working conditions. New reports focus on how Amazon handles on-the-job injuries, including those suffered by warehouse workers called “pickers” (carpal tunnel syndrome) and even an HR executive (wrongful death).

Links of Note

A Glass of Wine, A Loaf of Bread, and Thou (and Thou and Thou)

Gregg Popovich, head coach of the NBA’s San Antonio Spurs, is now the winningest coach in NBA history and has long been praised for his team’s consistency and unique culture. So how does he do it? ESPN reports that while Popovich certainly has a great “basketball mind” and has had top talent over the years (including David Robinson, Tim Duncan, and Kawhi Leonard), it is Popovich’s love of food and wine that make for real team-building (and also the discovery of Manu Ginóbili).

Strangest Thing We've Heard of Late

Employee Misfire

In early April, an employee of St. Josaphat Parish School in Milwaukee brought a gun to the school. Unfortunately, the weapon was accidently discharged, grazing a 10-year-old student. While the incident was not reported to authorities for nearly two weeks, the employee has since been fired from St. Josaphat and arrested while an internal investigation has commenced.

Business Takeaway: Gun control continues to be a hot-button issue that becomes even more complex when considering the different sort of workplaces, not to mention political mores. For all the strong statements and good intentions, think about the ramifications—legal, PR, and otherwise—had this child been seriously injured or killed.