Fourth Quarter 2017

 

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In This Issue:

Quick Hits

Coworkers Shot at by Disgruntled Employee

Legal Update

Terms of Employment – Breaking Up is Hard to Do

Major Labor & Employment Settlements

It's Complicated: Medical Leave and ADA Accommodations

Legislative Update

Mandatory E-Verify?

Overtime Rule Goes Unchanged

Workplace Trends

Online Shopping Contributes to Changing Workforce

The Increasingly Unpredictable Work Schedule

In the News

Brave New World

Discrimination and Harassment – Some Surprising (and Not So Surprising) Venues

Unrealistic Goals Can Produce Unethical Behavior in Some Middle Managers

Protests & Rallies – Just Cause for Termination?

Links of Note

Temporary Teams

Workplace Criticism

Taking Vacation

Women in the Workplace

Office Flexibility

Strangest Thing

Clowning Around with Doughnut Delivery

You're Out of Order!

Published or Quoted Elsewhere:

Brave New World

Milwaukee Bar Association Messenger

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

Co-Workers Shot at by Disgruntled Employee

A 24-year-old Milwaukee man faces criminal charges after shooting at his coworkers. The man and his coworkers were in neighboring vehicles traveling on I-43 southbound toward downtown Milwaukee in late September. Reports following the incident indicate that the man was terminated (or demoted) from his job earlier in the day.

Business Takeaway: Separations can be emotional, difficult, and accordingly, dangerous. There are steps one can take to minimize the pain, facilitate the transition, and lessen the chances of danger and legal exposure. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information.

Legal Update

Terms of Employment – Breaking Up is Hard to Do

There have been several interesting new decisions around separation of employment: In Bukstein v. Dean Health Systems, Dean Health Systems terminated their relationship with Dr. Donald Bukstein, citing the at-will provision of his Shareholder Employment Agreement. Bukstein claimed a subsequent management policy superseded the at-will nature of his employment. The Wisconsin Court of Appeals held that the management policy did not modify or supersede Bukstein’s at-will status and that Dean Health Systems acted lawfully in terminating him.

A different set of facts yielded the opposite result. In Englebert v. Calumet River Fleeting, Inc., Kay Englebert left a secure, full-time job to join Calumet. She signed a five-year employment agreement which included a provision related to severance pay in the event of early termination. Less than a year into Englebert’s employment, Calumet closed the Sturgeon Bay location at which Englebert worked. Here, the court of appeals held that the severance provision was enforceable, resulting in a judgment in Englebert’s favor for over $300,000.

Business Takeaway: Whether you utilize employment agreements (and, if so, the language of your agreements) can have a substantial impact on your business. There are some instances in which employment agreements make perfect sense, but most employers continue to find comfort in the “employment at-will” doctrine. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information on employment agreements.

Major Labor & Employment Settlements

Regional employers have recently paid out large sums to settle EEOC discrimination and harassment cases including payments of $475,000 by Wisconsin Plastics (national-origin discrimination), $1.95 million by the American Dental Association (retaliation), and $10.1 million by Ford Motor Company (racial and sexual harassment).

Business Takeaway: These settlements serve as a reminder that (1) labor and employment exposure can be large, and (2) if big, sophisticated employers are vulnerable here, how do companies with fewer resources protect themselves? Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on discrimination and harassment.

It's Complicated: Medical Leave and ADA Accommodations

Severson v. Heartland Woodcraft, Inc., involves an employee who used up all 12 weeks of his Family and Medical Leave Act (“FMLA”) leave, and then sought an additional 2-3 months of medical leave, having undergone back surgery on the last day of his FMLA leave. The business terminated his employment, informing him he could reapply for a position at the company when he was fit to return. The Seventh Circuit Court of Appeals held that the employer was not required to provide the employee with additional time off beyond FMLA. The court reasoned that “The ADA is an antidiscrimination statute, not a medical-leave entitlement.”

Business Takeaway: Medical leave can be a tricky and sensitive topic, potentially involving the FMLA, Americans with Disabilities Act (“ADA”), Wisconsin Fair Employment Act (“WFEA”), Workers’ Compensation law, business pressures, and even your own sense of what the business can/should do in such a circumstance. For example, businesses frequently find that the ADA language and guidance is less than clear relative to what accommodations might be deemed reasonable. This decision confirms that medical leave above and beyond FMLA leave is not necessarily warranted. One resource on this subject, the Job Accommodation Network (“JAN”), offers a list of potential accommodations (organized by disability). It also serves as a standard by which you might be measured after the fact. Contact Michael at 414-446-8800 or michael@goldsteinsc.com for more information on ADA compliance.

Legislative Update

Mandatory E-Verify?

On October 25, E-Verify took an important step toward becoming a mandatory practice. On that date, the Legal Workforce Act (“LWA” or H.R. 3711), passed a House Judiciary Committee.  The LWA would require employers to utilize E-Verify to check employment eligibility of potential hires. As such, the LWA would make I-9 forms obsolete and, at the same time, constitute a safe harbor for employers who use it. If enacted, the law will phase in over a 6- to 24-month period.

Business Takeaway: We have forecasted this potential shift for some time, and this recent development may signify real change. While many businesses would be happy to do away with traditional I-9 forms, the LWA does bring with it similar responsibilities—and even more severe penalties. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information on employee eligibility compliance.

Overtime Rule Goes Unchanged

In November 2016, a federal court in Texas issued an injunction on the new Fair Labor Standards Act (“FLSA”) overtime rule—temporarily blocking the rule from taking effect. On August 31, 2017, the court made the injunction permanent. While this means that none of the proposed changes to the FLSA overtime rules will take effect, the Department of Labor (“DOL”) still has on its plate the question of what, if any, changes should be made to the rules as they currently exist.

Business Takeaway: For many businesses, the end of 2016 served as a unique opportunity to correct a variety of FLSA issues. Current Secretary of Labor Alexander Acosta has not dismissed the possibility of changes, including a change to the threshold salary. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on FLSA overtime compliance.

Workplace Trends

Online Shopping Contributes to Changing Workforce

In many ways, the workforce no longer resembles what it was even ten years ago. One major change—online shopping—has affected brick-and-mortar stores as well as warehouse and distribution centers. While storefronts continue to see a decline in business (and the associated need for employees), warehouses need to recruit and retain significantly more people. Training and retaining a productive workforce requires attention to issues unique to warehouse and distribution centers.

Business Takeaway: While online shopping may not have directly affected your industry, take note of how these industries continue to adapt to a changing workforce—including changes that may not have been predicted even a short time ago.

The Increasingly Unpredictable Work Schedule

Several jurisdictions in the United States have recently passed laws to address the growing concern about the unpredictability of work schedules. For some employees, unpredictable schedules translate to juggling other obligations (e.g., childcare, multiple part-time jobs) as well as unpredictable compensation. In Oregon and other states, many employers must now provide advance notice to employees regarding work schedules.

Business Takeaway: While it is easy to understand why employees favor predictable work schedules, business needs are often unpredictable. What are you seeing, and how have you addressed this issue? Contact Michael at 414-446-8800 or michael@goldsteinsc.com for more information on work schedules.

In the News

Brave New World

In Wisconsin, the unemployment rate is currently 3.2%. While largely good news, this also brings certain challenges. For example, changes to the workplace may very well have outpaced labor and employment legal standards. Turn to page 24 of the Fall 2017 issue of the Milwaukee Bar Association Messenger Magazine for Attorney Goldstein’s piece on the changing workforce.

Discrimination and Harassment – Some Surprising (and Not So Surprising) Venues

The allegations against Harvey Weinstein (and, now, several others) are an unfortunate reminder of the continuing problems with discrimination and harassment in the workplace.

Self-reported salaries and bonuses from 1,200 Google employees (all based in the United States) indicate that females are paid less than their male counterparts at most levels of employment. While there is some additional context necessary to fully understand these findings, they are in line with other recent analyses, not to mention stories of harassment and discrimination in Silicon Valley.

On the east coast, State Street Corporation, which commissioned the Fearless Girl statue that stands opposite Charging Bull near Wall Street, is paying out $5 million relative to claims of gender and race discrimination.

Upon investigating claims of discrimination and sexual harassment, the accreditation committee of the American Bar Association (ABA) found that the Thurgood Marshall School of Law at Texas Southern University does not comply with ABA standards. Associate Dean Faith Joseph Jackson alleged she was harassed and discriminated against due to her race and gender. Her claims include that she was prevented from participating in meetings, she was paid less than male counterparts and that racial slurs were used in reference to her.

Business Takeaway: Discrimination and harassment continue to threaten businesses new and old. While discrimination issues are nothing new in the financial services sector, recent cases of discrimination and harassment show that new and progressive business models are just as susceptible. Contact Michael at 414-446-8800 or michael@goldsteinsc.com for more information on employee discrimination and harassment.

Unrealistic Goals Can Produce Unethical Behavior in Some Middle Managers

Researchers from Penn State University have found that unethical behavior in companies may originate in middle management. The findings show that middle managers can be tasked with unrealistic or impossible goals by higher management. Rather than raise their concerns about the unrealistic expectations, the managers found ways to deceive superiors by masking underperformance or misrepresenting achievements

Several recent, large-scale scandals support the University’s findings, including Kobe Steel employees falsifying reports to meet client specifications or Wells Fargo branch managers and employees opening fraudulent accounts in response to the demand for opening as many accounts as possible. While large companies will continue to make these headlines, pressure to meet unrealistic goals can invite similar issues in businesses of all sizes.

Business Takeaway: Hiring the right manager is a difficult task for any business, but you can take steps to minimize exposure and risk. Do not be afraid to set “stretch” goals, but provide context and coaching. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information on management and business goals.

Protests & Rallies – Just Cause for Termination?

What do kneeling NFL players have in common with those who took part in the Charlottesville rally? In both scenarios, people have called for the firing of those involved. In most instances, termination is not unwarranted—as there is no law precluding private employers from acting upon speech that reflects negatively on the company.

Links of Note

Temporary Teams

We recently experienced the annual influx of pop-up Halloween shops, which close for the season promptly after the holiday. A recent article examined this pop-up workplace phenomenon and the larger concept of “temporary teams.” How do you use temporary teams?

Workplace Criticism

A recent Wall Street Journal article discusses the importance of candid feedback and presents 20 “rules” for delivering criticism in the workplace. Including real-life examples from multiple companies, this article demonstrates how traditionally difficult discussions can prompt change and improvement.

Taking Vacation

While we all know the value of vacation for ourselves, and for workplace morale and productivity, yet employees in the United States are still not using their allotted vacation time. A recent study in the Harvard Business Review offers suggestions on how and why employees should vacation more regularly.

Women in the Workplace

A study of venture capital firms between 1990 and 2016 reveals that firms with greater gender diversity saw better performance. The study also identified a new and interesting indicator of success—whether the firm’s partners have daughters. How might this be? Findings show that partners with daughters have fewer gender biases, cultivating a more gender-diverse work environment and leading to greater success.

Office Flexibility

Different tasks require different types of workspaces. For example, some work may be confidential, requiring privacy. Other projects may benefit from collaboration, and then there are employees’ own work preferences. IBM and Microsoft, among other companies, suggest that creating a variety of workspaces and opportunities for employees to move around improves productivity.

Strangest Thing

Clowning Around with Doughnut Delivery

For Halloween, Hurts Donut Company offered a clown delivery service to provide doughnuts to customers. For $10, customers have an opportunity to send a creepy clown to deliver doughnuts to a friend, relative, or client. Since implementing the service, several videos have surfaced showing the reactions of unsuspecting recipients.

Business Takeaway: While there can be little doubt about the value of “getting into the holiday spirit” and related PR, this prank invites some additional job hazards, including a range of possible, and unusual, workers’ compensation claims. Stay safe out there!

You're Out of Order!

Attorney Drew Quitschau was terminated from his law firm and faces professional discipline after harassing opposing counsel. Quitschau used his office computer to create a Match.com profile for the attorney (and represented that she separated from her husband), mail a lap-band kit to her office, and post false reviews about the attorney, among other things.

Business Takeaway: While an extreme example, Quitschau’s misuse of company time and devices is a reminder to have policies in place, particularly when it comes to office technology. Quitschau is an attorney, after all, but it seems his emotions (and desire to have the last word) clearly got the best of him. Misuse of company property is, at best, a threat to business productivity, and at worst, a costly company liability relative to the actions of the employee. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information on workplace policies and employee handbooks.

Upcoming Events

1/18/18

Legislative & Legal Update

SRKA (SHRM Racine & Kenosha Chapter)


For more information on upcoming events, click here.