Firm News
We would like to introduce the newest member of our team: Attorney Dan Chanen. Dan is a cum laude graduate of the University of Wisconsin Law School, where he received the Joseph Bercovici Prize for Excellence in Jurisprudence and Legal Philosophy and served on the Law Review as an editor. Dan also has experience working as a human resources leader for both the Wauwatosa School District and Milwaukee Public Schools after years in private practice. Welcome, Dan!
Quick Hits
PAID: Wage and Hour Developments
On April 3, the U.S. Department of Labor (DOL) launched its Payroll Audit Independent Determination (PAID) pilot program. PAID allows business owners to resolve overtime and minimum wage violations under the Fair Labor Standards Act (FLSA) without litigation or penalty. The program will be implemented for six months to determine its effectiveness and any necessary changes.
Business Takeaway: The benefit of settling FLSA matters without litigation or penalty is of substantial value to businesses as lawsuits can snowball into class-actions and penalties can be severe. However, there are enough questions about the program and any unintended consequences (particularly considering the amount of information a business must disclose to the DOL) to remain cautious about applying. Contact us at 414-446-8800 if you are interested in exploring your FLSA options.
State Law Trumps Local Regulation with
Assembly Bill 748
Assembly Bill 748 has passed both chambers of the Wisconsin Legislature and has been signed by Governor Scott Walker. The bill prevents local government regulation from countermanding state law on matters of employment. This affects municipalities and counties that currently offer more favorable benefits and protections to workers than those provided by state law. While local labor laws will be voided by this law, one result could be more consistency and predictability of employment laws.
Lawsuit Alleges Fear of Government Retaliation
Juli Briskman was forced to resign from Akima last year after a photo of her “giving the finger” to President Donald Trump’s motorcade went viral. She is now suing the company, alleging that her termination was out of fear of government retaliation. The company initially informed Briskman that she was discharged for violating company policy (obscene social media content). Briskman counters that a senior director at the company was never reprimanded despite posting obscenities on social media regarding Black Lives Matter. Stay tuned.
Legal Update
Appeals Court Says Termination Constitutes Sex Discrimination
The United States Court of Appeals for the Sixth Circuit recently held that an employee terminated due to transgender status constituted sex discrimination, conflicting with Attorney General Jeff Sessions’ October 2017 memorandum on the subject. The employee worked at a funeral home in Michigan. She began dressing as a woman after informing the owner of her decision to transition from male to female. The funeral home terminated her employment for violation of its dress code also contending that the transgender worker conflicted with the owner’s sincerely held religious beliefs. Ultimately, the court (unanimously) decided that the employment decision constituted sex discrimination.
Business Takeaway: This decision has potential implications for both sex discrimination in the workplace and exercise of religion in the workplace. For now, keep in mind that this is one of several recent examples in which decisions based on an employee’s transgender status have been determined to constitute sex discrimination. With the Attorney General taking the opposite view, these matters are likely far from settled.
Legislative Update
Unconventional Plan for Parental Paid Leave Proposed by Women's Group
A new plan for parental paid leave, presented by the Independent Women’s Forum, would offer a unique tradeoff—parents who use Social Security benefits to pay for time off delay their eligibility for Social Security benefits upon retirement. Unlike most proposed paid leave plans, this plan would not require new taxes as the retirement eligibility delay would offset the costs associated with paid leave.
Business Takeaway: Paid leave for new parents will remain a hot topic for the foreseeable future. While some state and local governments have already introduced or implemented paid leave initiatives, it is unlikely to become mandatory. Would you use paid leave if it meant delaying qualification for social security benefits by a few years?
Regulatory Update
Joint Employer Status Changes (Again)
In our last newsletter, we reported that the National Labor Relations Board (NLRB) reversed the 2015 Browning-Ferris decision relative to joint employer status in the case of Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. In a strange twist, the Hy-Brand ruling has since been vacated due to a conflict-of-interest issue.
Business Takeaway: Ultimately, this means that the rule on joint employer issues is the same as it was between 2015 and December 2017. With the recency of the last development, this should not significantly affect your business unless you already implemented changes due to the Hy-Brand ruling. Also, expect the NLRB to be looking for another opportunity to address the issue. Contact Michael at 414-446-8800 or michael@goldsteinsc.com for additional information on joint employer status.
Federal Tax Credit Incentivizes Hiring of Certain Groups
The Work Opportunity Tax Credit (WOTC) offers a federal tax credit to employers who hire workers from designated groups (e.g., ex-felons; qualified, long-term unemployment recipients; unemployed veterans). Per the Wisconsin Department of Workforce Development (DWD), employers can claim a tax credit of “up to 40% of the first $6,000 in qualified first-year wages for a maximum of $2,400 per new hire.”
Business Takeaway: WOTC is intended to promote the employment of individuals in the groups designated by the DOL via financial incentives to employers. If you are considering hiring an individual from one of the specified groups, consider the calculations provided by the DWD, but keep in mind that WOTC applies to new employees only. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for additional information on the WOTC tax credit.
Workplace Trends
Predictable Work Hours Provide Benefits All Around
The Stable Scheduling Study conducted by Worklife Law of the University of California-Hastings College of the Law concluded that providing consistent and predictable work hours to employees benefits both the employee and the business. The study was conducted by observing various Gap stores in the San Francisco and Chicago areas and by comparing a control group to stores that experimented with new practices (e.g., shift swapping, core scheduling) aimed to promote consistency and predictability in work hours. Major findings include increased median sales and labor productivity.
Business Takeaway: We have previously covered laws intended to address the growing concern about the unpredictability of work schedules. This study suggests that, regardless of what is legally mandated, the benefits are real—for employee and employer. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on employee work schedules.
Training to Address Shortage of Qualified Construction Workers
The Home Builders Institute will be using Home Depot’s recent $50 million donation to increase its training of construction workers by approximately 60%. The initiative is intended to help individuals obtain construction jobs, targeting particular groups (e.g., veterans), while also addressing the growing shortage of tradespeople and construction workers. As of December 2017, there were over 150,000 construction job openings throughout the country.
Business Takeaway: Due to the current tight job market and apparent lack of tradespeople, many business owners have struggled in hiring and/or retaining talented employees. Recent high-profile local examples include the Bucks Arena and Milwaukee Streetcar—and the Residential Preference Program (RPP), which required 40% of the workers to be from the city of Milwaukee. How have you gone about finding talent?
The Ongoing Challenge of Employee Engagement
The world of work seems to be in a constant state of change, resulting in experimental employment strategies to improve employee engagement—with mixed results. A Harvard Business Review study suggests that some businesses are spending money on short-term employment engagement initiatives rather than long-term employee experience which typically results in overspending without ever addressing the underlying challenge of company culture, physical workspace, technology, or other potential issues.
Some companies have designed their company and culture around employee engagement and addressing work-life balance directly. For example, a variety of companies are renting space from New York startup, WeWork, which provides shared work and community space. For many new companies, it is simply too soon to tell how effective such "new age" approaches can be in improving employee engagement.
Business Takeaway: Many existing/established companies are throwing money at short-term measures and “new age” ideas (e.g., shuffleboard table) without considering or addressing underlying issues. Meanwhile newer companies and start-ups have a track record of struggling to identify which strategies actually have a lasting impact on employee engagement. Ultimately, there is no one-size-fits-all solution. For more information on company culture and employee engagement, contact Julia at 414-446-8800 or julia@goldsteinsc.com.
In the News
Solving the Gender Pay Gap
On April 4, all British companies with over 250 employees had to publish data on gender pay gaps. Those in support of the measure believe the practice will speed efforts to reduce gender-based compensation discrepancies. A recent high-profile example includes The Crown’s Claire Foy getting paid less than her costar, Matt Smith, despite her leading role. On the other hand, critics are quick to point out that the requisite information does not measure unequal pay for equal work, but rather, median hourly rate, regardless of job. For instance, Ryanair and other airlines have some of the worst reported gender gaps, but it seems this may have more to do with the gender imbalance of pilots and flight attendants than whether men and women are receiving equal pay for the same job.
Business Takeaway: A similar reporting rule proposed under the Obama administration was halted by President Trump last year. While the British reports may not solve the issue of unequal pay for equal work, they may provide valuable insight into the causes of gender imbalance in particular professions. For more information on the gender wage gap, contact Dan at 414-446-8800 or dan@goldsteinsc.com.
Addressing Sexual Harassment with Training Videos
An NPR researcher recently reviewed 74 different sexual harassment training videos (old and new) and discovered that while older videos focused on laughably primal scenarios, newer videos focused on “gray area” behavior like sharing a coworker’s social media photos. The new approach is problematic in that it skips over blatant abuse of power. Moreover, many of the high-profile sexual harassment stories over the past year fall closer to the more traditional scenarios which the new videos do not address.
Business Takeaway: Not every business utilizes sexual harassment training videos (and very few stick to the antiquated videos mentioned above), but the ability to communicate that you are to be trusted on the subject (i.e., you take reports seriously and will act and/or investigate properly) is crucial. Keep in mind there is no "outdated" form of sexual harassment and that you must be proactive by implementing sexual harassment policies and maintaining an open dialogue with employees. For more information on sexual harassment policies and training, contact Mark at 414-446-8800 or mark@goldsteinsc.com.
Links of Note
How Well Do You Know Yourself?
Various recent studies demonstrate that coworkers are better at recognizing some of your personality traits than you are. While individuals may accurately provide information on their own internal traits (e.g., emotional stability), coworkers are twice as accurate as individuals in rating “visible” traits. For example, people often overestimate themselves when it comes to desirable traits. Self-awareness (both internal and external) is closely related to leadership skills. What would your coworkers say about you?
9 to 5
Radio Program This American Life commissioned a cover of Dolly Parton’s 9 to 5 (featured in the 1980 film of the same name). Do you like the new version or prefer the original?
Strangest Thing We've Heard of Late
Was He Rude or Just French?
Guillaume Rey, a waiter in Vancouver, recently filed a complaint after a restaurant terminated him for his “rude” demeanor. In his complaint, Rey alleges that he is French, and, accordingly, the restaurant discriminated against his culture when they fired him. While Rey contends he maintained a “direct, honest, and professional personality,” many are skeptical of his defense and reliance on the stereotype of a French waiter. However, the British Columbia Human Rights Tribunal found that his claim deserves a hearing.