First Quarter 2018

 

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In This Issue:

New Year, New Neighborhood

Quick Hits

Deadline for Implementing Tax Law's New Withholding Guidelines

Effects of New Tax Law on Affordable Care Act

Tax Law Creates Paid Leave Incentive

In the News

Lambeau Field Incident Demonstrates Importance of a Game Plan

Sexual Harassment in the Workplace

When Employee Speech or Behavior is a Terminable Offense

Legal Update

Recent Court Ruling Means Non-Solicitation Agreements Should be Reviewed

Regulatory Update

Joint Employer Status Changes Under New Ruling

New Guidelines for Unpaid Interns and Students

Links of Note

Mentoring Relationships Between Genders

Evolution of Office Seating

Biases and Job Applicants

A Sense of Purpose

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

New Year, New Neighborhood

We hope your 2018 is off to a good start. We are excited to inform you of our recent move to larger, beautiful space in the vibrant Walker’s Point neighborhood. Our new address is:

161 South First Street, Suite 400
Milwaukee, Wisconsin 53204

Should you find yourself "in the neighborhood," please stop by and check it out for yourself.

Quick Hits

Deadline for Implementing Tax Law's New Withholding Guidelines

On January 11, the U.S. Department of the Treasury released withholding guidelines for the recently passed changes to the tax code. Employers should implement the new tables no later than February 15, 2018. Most employees will experience an increase in take-home pay (to varying degrees). On the other hand, some states (e.g., California, New York) are considering changes to their own tax codes to address an anticipated reduction in state and local taxes under the new law.

Effects of New Tax Law on Affordable Care Act

The new tax legislation eliminates the individual penalty for not having health insurance. However, Wisconsin healthcare executives theorize that many will still have a significant incentive to retain their health insurance.

The IRS has also extended the deadline for distributing forms 1095-B (Health Coverage) and 1095-C (Employer-Provided Health Insurance Offer) from January 31, 2018 to March 2, 2018.

Tax Law Creates Paid Leave Incentive

The new tax law also includes new and significant credits for companies that offer paid family and medical leave. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information.

In the News

Lambeau Field Incident Demonstrates Importance of a Game Plan

In December, dozens of Brown County police officers raced to Lambeau Field after reports came in of an active shooter driving a car into parked vehicles and then driving into the stadium itself. Fortunately, the man was unarmed, and no one was seriously injured. While the scene may not have been as devastating as initial reports suggested, Green Bay Police (along with the fire department, paramedics, etc.) had drafted and practiced a number of plans in case of incidents at Lambeau Field (in this case “active shooter, non-game day”). The result was a safe de-escalation of the situation.

Business Takeaway: While this story is but one of several recent examples of the dangers posed by disgruntled employees, it is also a testament to the importance of having procedures in place that anticipate a range of possible events. Contact Adam at 414-446-8800 or adam@goldsteinsc.com to discuss implementing emergency protocols and procedures.

Sexual Harassment in the Workplace

Sexual harassment continues to dominate the news cycle, prompted by shocking allegations, nearly daily, against a wide variety of high-profile personalities.

In local news, Tempo Milwaukee, an organization focused on furthering the impact of women leaders in Milwaukee, reports 68% of its survey participants have experienced sexual harassment—ranging from inappropriate comments and advances to outright sexual assault. Nationally, even new and “cutting-edge” companies have been found to foster an environment conducive to sexual harassment.

In response to these developments, more and more businesses have expressed interest in sexual harassment education. The EEOC has responded with a new on-site training program, a good step by and large. On the other hand, some studies suggest that we should further investigate common patterns of sexual harassment, including the prevalence of claims in workplaces with disproportionate male management or industries with significantly unbalanced gender demographics. Other recent studies highlight the conflicting interests HR departments must juggle—a responsibility to limit company liability and a duty to investigate claims in good faith.

Business Takeaway: Sexual harassment in the workplace will continue to feature prominently in the news for as long as there are high-profile allegations and cases (i.e., a long time). Best practices include the implementation of company policies and procedures, continuous education of employees on their rights and responsibilities, and management training on the handling of sexual harassment claims. Most importantly, companies should foster an environment that welcomes reporting and promises to handle claims seriously and effectively. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information on how to address and prevent sexual harassment in the workplace.

When Employee Speech or Behavior is a Terminable Offense

In December, an American Sewer Services employee was fired for bringing a cooler adorned with Confederate flag and Ku Klux Klan stickers to a worksite. While some might be eager to compare the employee’s actions to the free speech concerns debated after last summer’s rallies over Confederate statues, the fact that the American Sewer Services employee displayed these stickers at a worksite is an important aggravating factor.

Around the same time, three other American Sewer Services employees were featured in a Facebook photo brandishing guns at a worksite, in direct violation of the City of Milwaukee’s zero-tolerance policy. The photo quickly received attention, ultimately resulting in the termination of all three employees.

Business Takeaway: Another reminder that, with few exceptions, private employers may take action against speech that reflects negatively on the company—particularly when the employee’s speech/actions take place at the workplace. If you do not already address employee speech and conduct in your employee handbook, now is the time. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information on employee conduct.

Legal Update

Recent Court Ruling Means Non-Solicitation Agreements Should be Reviewed

The Wisconsin Supreme Court has affirmed the court of appeals decision that Manitowoc Company’s non-solicitation agreement was overbroad and, as such, unenforceable in the case of Manitowoc Company, Inc. v. Lanning. The language found in Manitowoc Company’s non-solicitation provision is not uncommon:

I agree that during my Employment by Manitowoc and for a period of two years from the date my Employment by Manitowoc ends for any reason, including termination by Manitowoc with or without cause, I will not (either directly or indirectly) solicit, induce or encourage any employee(s) to terminate their employment with Manitowoc or to accept employment with any competitor, supplier or customer of Manitowoc.

The supreme court’s reasoning includes the fact that the clause prohibits all such conduct—including, for example, career advice to a low-level employee with no competitive know-how or expertise.

Business Takeaway: The supreme court’s ruling calls for an immediate audit of your existing non-solicitation provisions. The language found in Manitowoc Company’s provision has been considered “standard” for years. As a result, there may be issues to address in your existing agreement. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for a complimentary review of your existing non-solicitation agreement or to discuss drafting a new one.

Regulatory Update

Joint Employer Status Changes Under New Ruling

The National Labor Relations Board reversed the 2015 Browning-Ferris decision relative to joint employment status in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. The Hy-Brand decision means the standard for making a joint employer determination requires proof that a company has exercised some “direct and immediate control” over employment terms of another company’s employees, a standard more favorable to employers than the prior Browning-Ferris standard.

Business Takeaway: This decision should give some comfort to franchisors and franchisees that were first considered joint employers under the 2015 Browning-Ferris decision. Contact Michael at 414-446-8800 or michael@goldsteinsc.com if you have questions about the joint employer designation or its associated legal requirements.

New Guidelines for Unpaid Interns and Students

The U.S. Department of Labor (“DOL”) has published a new fact sheet concerning interns and students and the Fair Labor Standards Act (“FLSA”). This follows the Ninth Circuit’s decision to reject the DOL’s six-part test (the Ninth Circuit was the fourth federal appellate court to do so). The DOL’s fact sheet includes a new test designed to help "for-profit" employers determine whether interns and students are entitled to minimum wages and overtime pay under the Fair Labor Standards Act. It focuses on the economic reality of the intern-employer relationship, known as the “primary beneficiary test,” which is characterized by the following seven factors:

  1. The intern has no expectation of compensation.
  2. The internship provides training that would be similar to that which would be given in an educational environment (including clinical training).
  3. The internship is tied to the intern’s formal education program (e.g., integrated coursework or the receipt of academic credit).
  4. The internship accommodates the intern’s academic commitments (e.g., corresponding to the academic calendar).
  5. The internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The intern’s work complements, rather than displaces, paid employees.
  7. There is no promise of a paid job at the conclusion of the internship.

Business Takeaway: While the former six-part test created issues for employers relative to unpaid internships, the new version is more flexible. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on unpaid internships and worker classifications.

Links of Note

Mentoring Relationships Between Genders

Reports show that men are pulling away from mentoring women, perhaps in an effort to avoid any appearance of inappropriate behavior given recent allegations of sexual harassment. SHRM has compiled a list of seven guidelines for mixed-gender mentoring relationships.

Evolution of Office Seating

Office chairs often reflect both the predominant work and the zeitgeist of the period in which they were designed. For example, the ubiquity of computers in the workplace prompted designers to create chairs that accommodate computer-based work. Apple is one of the first customers of the new Pacific Chair. What do you think?

Biases and Job Applicants

Frida Polli and Kate Glazebrook founded startups (Plymetrics and Applied, respectively) that offer algorithm-based technology to provide equal opportunities to applicants regardless of gender, ethnic background, or socioeconomic status. Polli and Glazebrook envision a future of ability-based promotion and day-to-day fairness utilizing, for example, “blind audition” and data-driven technology.

A Sense of Purpose

Blackrock, Inc. is the largest asset manager in the world ($5.7 trillion in assets as of July 2017). Blackrock CEO Laurence Fink recently penned an open letter to CEOs titled “A Sense of Purpose.” In his letter, Fink speaks to the concept that “society is demanding that companies, both public and private, serve a social purpose.” For example, Fink challenges companies to ask themselves about the role they play in the community, how they impact the environment, and how they work to create a diverse workforce.