Fourth Quarter 2018

 

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In This Issue:

Quick Hits

JPMorgan Chase & Co. Settles in Workplace Discrimination Lawsuit

Accounting for Opioids in Workplace Drug Policies

Regulatory Update

Tread Carefully with Tentative Nonconfirmation (TNC) Status Candidates

Clarifying OSHA Guidelines on Post-Incident Drug Testing

Workplace Trends

The Ongoing Challenge of Technology & Social Media in the Workplace

Hiring in the Era of Drug Problems and "Ghosts"

There's No Place Like Home

In the News

The Midterms, Rhetoric, and Violence

FLSA Lawsuit Brought Against Kohl’s for Misclassification

Walkout at McDonald’s Over Sexual Harassment in Workplace

Gender Pay Gap Lawsuit Hits a Sour Note for Boston Orchestra

Links of Note

Top Performers Top Out

We Work Best Together — Sometimes

Strangest Thing We've Heard of Late

Things That Go Bump in the Night

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

JPMorgan Chase & Co. Settles in Workplace Discrimination Lawsuit

In September, JPMorgan Chase settled with six current and former employees who filed a lawsuit against the company, alleging workplace discrimination and citing the company’s race-based denial of opportunities, compensation disparity, and other issues. As part of the settlement, JPMorgan Chase will be paying $19.5 million to the plaintiffs and committing another $4.5 million to a fund for minority recruitment and coaching as well as bias training.

Accounting for Opioids in Workplace Drug Policies

The opioid epidemic has ravaged individuals and their families throughout this country. If your business is being affected, the State of Wisconsin’s Dose of Reality program is a resource you may find useful. The program provides information on several issues that businesses should address. For example, does your drug policy address legal drugs, including prescription medication, or just illegal drugs? Do you offer an Employee Assistance Program (EAP)? And what support do you offer for family members of those struggling with opioid addiction? Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information.

Regulatory Update

Tread Carefully with Tentative Nonconfirmation (TNC) Status Candidates

E-verify reminds that employers should not eliminate from consideration, or take adverse action against, a candidate based on TNC status. The Social Security Administration (SSA) and/or Department of Homeland Security (DHS) review TNCs, after which they issue a final determination. For more about the E-verify process, see E-Verify Employer Resources page.

Clarifying OSHA Guidelines on Post-Incident Drug Testing

When the Occupational Safety and Health Administration (OSHA) published its “final rule” in May 2016, the anti-retaliation measures were a cause of confusion for many employers, particularly as they related to post-incident drug testing and incentive programs. At the time, many thought OSHA’s final rule prohibited post-incident testing and incentive programs because either could be construed as retaliation. OSHA’s recently published guidelines clear up a few questions, as they specify that the final rule does not prohibit post-incident drug testing that is intended to promote workplace safety and health. Further, OSHA acknowledges that incentive programs can be an “important tool to promote workplace safety and health.”

Business Takeaway: If you opted to move away from post-incident testing or safety incentive programs in light of the 2016 final rule, now is the time to revisit these policies. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information on workplace safety and compliance.

Workplace Trends

The Ongoing Challenge of Technology & Social Media in the Workplace

A former Facebook content moderator has sued the company for failing to protect her (and other moderators) from the effects of exposure to graphic content. Facebook moderators (approximately 7,500 in all) are tasked with triaging flagged content and, as a result, view some of the most horrific content posted on the internet, including sexual assault and murder. The plaintiff claims that her nine-month stint with the company resulted in post-traumatic stress disorder and has asked that Facebook offer medical services and psychiatric treatment to content moderators.

Meanwhile in Milwaukee, the Bucks’ Sterling Brown filed a federal civil rights suit against the Milwaukee Police Department and the city in June following his highly publicized and controversial arrest. Erik Andrade, one of the officers involved in arrest, was fired in September—not related to the arrest itself, but for violation of MPD’s social media policy. Brown cited Officer Andrade’s social media activity in his lawsuit which included posts with racial connotations, jokes about the arrest, and even an allusion to wishing he had the opportunity to do the same thing to a different basketball player (J.R. Smith).

Business Takeaway: Social media continues to shape the working world. Implementing a strong social media policy is your first step in addressing, minimizing, and/or preventing a host of issues related to employee social media use. While employees are free to express themselves on personal social media accounts, social media activity posted from work, utilizing work computers, or on business-related platforms may still call for disciplinary action. As for Officer Andrade, his social media activity may affect the outcome of Brown’s lawsuit. Stay tuned.

Hiring in the Era of Drug Problems and "Ghosts"

While many businesses are struggling to identify and/or attract qualified job applicants, some are taking innovative approaches to adapt. For instance, Belden, an Indiana-based factory, repeatedly encountered otherwise-qualified individuals who could not pass a drug test, so the company started offering drug treatment to those who failed the test, offering a job to each candidate who successfully completed treatment.

Job applicants—and even recent hires—are also “ghosting” prospective employers at a higher rate than in years past, and at all stages of the hiring process (failing to answer or return phone calls, not showing up to scheduled interviews, and not showing up on start dates). Some suggest this is attributable to workers taking advantage of the current state of the job market or actively “turning the tables” on employers who may have failed to adequately communicate with job applicants in years past. The short answer here is to speed up the hiring process, identify criteria that will reveal those who are committed to the company, and provide incentives for those who show up (and continue showing up).

Business Takeaway: What patterns have you observed with respect to recent applicants who have worked out, and those who have not? Best recruitment practices from a few years ago may have evolved or changed completely. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information on recruitment and hiring procedures.

There's No Place Like Home

In recent years, many companies have gone to great lengths to create an inviting, comfortable work environment, employing some of the same strategies famously found in Silicon Valley (e.g., video games, coffee bars, meal options). This approach has started to fall out of favor with employees who fear it further blurs lines of work-life balance, as the “perks” keep them at work longer than they need to be there. Employees seem to prefer Slack’s model of “work hard and go home.”

Meanwhile, other companies have turned their focus to benefits enjoyed outside of the workplace. For example, Microsoft recently required that any Microsoft supplier or contractor with 50+ employees provide paid parental leave to its employees.

Business Takeaway: As you work to identify and address any such issues, remember that long-term employee retention is rooted in company culture, not your foosball table. Have you experienced an uptick in employee retention issues? What has worked? And what hasn’t? Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on employee retention.

In the News

The Midterms, Rhetoric, and Violence

With the midterm elections next week, we have seen an unsurprising but considerable uptick in political and other inflammatory rhetoric. Tragically, but also unsurprisingly, this has been accompanied by an uptick in violence. Last week it was pipe bombs and, over the weekend, shootings targeting houses of worship in Pittsburgh and Louisville.

As to the rhetoric, it bears reminding that there are bounds to free speech (e.g. yelling fire in a crowded theater), and that hateful rhetoric has no place in a civil society (or the workplace). It also bears remembering that much of this rhetoric is simply not fact-based and, in some instances, planted by nefarious actors for the explicit purpose of inflaming passions.

Yet calendar year 2017 saw the largest single increase of anti-Semitic incidents (nearly 60%) in recent years. So what are we—as business owners, community leaders, and Americans—going to do about it? We know that such rhetoric has significant, destructive, and long-lasting consequences. For example, reduced productivity ("we have product innovation teams that have not come back to the same level of productivity since the election"), or the linking of speech by your employees to your business and your corporate brand. The consequences are real.

FLSA Lawsuit Brought Against Kohl’s for Misclassification

In a collective action lawsuit, Kohl’s has been accused of misclassifying assistant store managers as exempt employees in order to avoid paying overtime. As you may recall from our prior discussion of the Fair Labor Standards Act (FLSA), two of the most common classification issues occur when employers (1) presume employees with job titles that match the exemptions—those with terms such as “executive” or “administrator” in the title—are exempt (bypassing job duty requirements), or (2) assume that all salaried employees are exempt (bypassing the salary threshold and job duty requirements).

Business Takeaway: FLSA litigation has grown over recent years with many highly publicized, expensive verdicts and settlements. While the anticipated white-collar exemption changes fell through in 2017, the Department of Labor (DOL) has suggested that different changes to the white-collar exemption requirements are still on the way, though the timetable has not yet been released. Exposure here can be substantial. Ensure that your business is in compliance with current exemption requirements and on alert for any future revisions. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on FLSA white-collar exemptions.

Walkout at McDonald’s Over Sexual Harassment in Workplace

On September 18, 2018, McDonald’s workers at restaurants in 10 U.S. cities (including Milwaukee and Chicago) organized a walkout to bring attention to the company’s handling of sexual harassment in the workplace. While the company has defended its current policies, procedures, and training, employees suggest the company has failed in enforcement. Many employees report that verbal and physical harassment claims have not been acknowledged or carefully considered and that any alleged company policy changes have proven ineffective.

Business Takeaway: While McDonald’s has taken the position that it has implemented adequate sexual harassment policies and reporting procedures, employees are reporting, at best, inconsistent results. This could be the result of (1) poorly written procedures, (2) poorly implemented procedures, (3) lack of training and understanding of employee roles in procedures, or (4) mixed results due to variance in franchise management. As McDonald’s learned relative to the strip search hoax of 2004, company policies are ineffective without proper implementation and/or training. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information on harassment policies and training.

Gender Pay Gap Lawsuit Hits a Sour Note for Boston Orchestra

Elizabeth Rowe, principal flutist of the Boston Symphony Orchestra (“BSO”), filed a gender pay discrimination suit against the orchestra, citing that her compensation is just 75% of her comparable colleague, John Ferrillo, BSO’s principal oboist. The two musicians are premier talents for one of the nation’s top orchestras. Since the suit has gone public, Ferrillo announced his support of Rowe, agreeing that Rowe is worthy of the same compensation he receives. BSO counters that the two musicians are not comparable and that orchestras maintain different pay scales by instrument. BSO also claims that Rowe is the fifth-highest paid principal musician, above nine other male principal musicians.

Business Takeaway: Despite increased attention and incremental improvements, unequal pay for equal work remains a major issue in the workplace. Unique to this suit is the question of whether musicians playing different instruments qualify as similarly situated. For some additional context, this recent article took a look at the gender gap by instrument—related to the history of each instrument, its personality, and the personalities of those drawn to the instrument. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information on discriminatory practices and wage disparity.

Links of Note

Top Performers Top Out

A recent study shows how the Peter Principle (people “rise to the level of their incompetence”) plays out in real-life workplaces. The study of sales managers and employees in 214 firms shows what happened when top performing salespeople were promoted to the role of sales manager (spoiler alert: better salespeople were worse managers). How can we reward top performers, and support them toward their career goals, without taking them away from what they do best?

We Work Best Together — Sometimes

Many studies have investigated the merits of working alone vs. in a group, although we all have our own preferences. Research by Ethan Bernstein and his colleagues suggests that intermittent group work gets the best results. Combining individual and group work provides avenues for individual creativity and variation while still benefitting from group wisdom.

Strangest Thing We've Heard of Late

Things That Go Bump in the Night

Have you ever been inexplicably spooked at work? From invisible forces to haunted buildings, a compilation of spooky work experiences shows this is not an uncommon feeling.