First Quarter 2019

 

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In This Issue:

Firm News

Quick Hits

Are Arbitration Clauses a Good Idea? It's Disputable.

FRCA Changes Result in New Forms

Airline Innovator May be Gone, but Ideas Have Taken Flight

Regulatory Update

Government Shutdown Was Headache for Business

Legal Update

You're Not Too Old, Just Too Experienced

Legislative Update

Reefer Madness in Wisconsin

New Reference Tool Available for Fair Labor Standards Act ("FLSA") Exemptions

Workplace Trends

The Ongoing Dilemma of Paid Parental Leave

In the News

Ex-Employee Virtually Takes Over His Old Firm

Workplace Irony

Falling Prey to Predatory Small Business Loans

Links of Note

Phoning It In

What's Your Attachment Style?

Strangest Thing We've Heard of Late

Stayin’ Alive, or When Life Imitates Art

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

Firm News

We hope that your 2019 is off to a great start!

We would like to introduce the newest member of our team, Gillian McBride. Gillian is a graduate of the University of Wisconsin and is managing a variety of new initiatives here at the firm that will improve and add to the services we offer to our clients.

Welcome, Gillian!

Quick Hits

Are Arbitration Clauses a Good Idea? It's Disputable.

With the June 2018 United States Supreme Court decision to approve the use of arbitration clauses in employment contracts, many companies have added them to their handbooks. Others, including Google and Facebook, have ceased doing so in response to employee pushback (at least relative to certain sorts of claims such as sexual harassment). While you may be considering an arbitration clause, or have already implemented one, these developments serve as a reminder, first, about the importance of knowing your employees and, second, about the importance of how you message any such change in policy.

FRCA Changes Result in New Forms

The Consumer Financial Protection Bureau (“CFPB”) updated its model summary of rights form prompted by the 2018 revisions to the Fair Credit Reporting Act (“FCRA”). Either update your existing disclosure forms or utilize the new model form provided by the CFPB. Non-compliance could subject you to expensive, and potentially class-action, litigation.

Airline Innovator May be Gone, but Ideas Have Taken Flight

The new year saw the passing of Herb Kelleher, founder of Southwest Airlines, who revolutionized an industry notorious for losing money. His approach demonstrated that employee and passenger satisfaction were achievable and that profitability would follow. Kelleher’s employee-first approach has been adapted and studied around the globe. At the same time, his legacy reminds us that, no matter the size of the business, it is what we bring to the table as individuals that counts (and may, in fact, be the “secret sauce”).

Regulatory Update

Government Shutdown Was Headache for Business

Did you try to use E-Verify during the government shutdown? The web-based system that enables employers to confirm employment eligibility was among the government resources unavailable during the 35-day shutdown. As a result, the requirements and corresponding penalties were suspended during the shutdown while the system was literally “down.” E-Verify has since been reinstated, so employers are expected to return to standard compliance rules (though delays and increased response times may be experienced).

Business Takeaway: While the government shutdown may have precluded access to federal resources (e.g., E-Verify), the obligation to comply with the law continues—in this case, as it relates to I-9 forms and employment verification. Do you have a system for performing your own verifications should E-Verify be offline? Do you have any new employees who didn’t check out with E-Verify once it came back online?

Legal Update

You're Not Too Old, Just Too Experienced

The United States Court of Appeals for the Seventh Circuit recently ruled against Attorney Dale Kleber who alleged CareFusion discriminated against him based on his age. Kleber claimed the company’s requirement of “no more than seven years of relevant legal experience” discriminated against older workers, but the 7th Circuit held that the requirement was defensible and that the Age Discrimination in Employment Act (“ADEA”) does not apply to applicants anyway.

Business Takeaway: This ruling offers a slightly different take on the intent behind federal protections under the ADEA relative to age and experience level. Under what circumstances might you “cap” experience levels for certain positions?

Legislative Update

Reefer Madness in Wisconsin

A majority of Wisconsin voters supported the legalization of marijuana in local referendums in November, and it now appears that Governor Evers is set to move on the issue. Local and national movements to legalize cannabis—from hemp and cannabidiol to medical and recreational marijuana use—show no signs of slowing down.

Business Takeaway: While marijuana use is still illegal under federal law and in most jurisdictions, employers continue to report a struggle to find job candidates who can pass a drug test. If/when and where marijuana use is legalized, this employment issue will be exacerbated. While businesses continue to test for marijuana, a positive marijuana test may not be disqualifying and also may not mean the individual is currently under the influence. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information on drug testing and related policies.

New Reference Tool Available for Fair Labor Standards Act (“FLSA”) Exemptions

After the 2016 election, the US Department of Labor (DOL) confirmed it would continue to review the FLSA and work toward a proposal to update the law. In the interim, the DOL has released a new compliance reference tool. For those who presume litigation may have subsided following the 2016 election, We Energies finalized a $4.2 million settlement earlier this month with hundreds of workers who alleged improper compensation under the FLSA.

Business Takeaway: While the DOL is working toward updating the FLSA exemptions, there is no indication when any such federal proposal or rule change may occur. That said, many businesses still misunderstand the current exemptions. This can be a costly mistake. The new reference tool may be handy in verifying whether your employees are truly exempt from minimum wage and overtime, but the vagueness and confusion around these rules calls for a deeper dive. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on the FLSA exemptions.

Workplace Trends

The Ongoing Dilemma of Paid Parental Leave

Paid parental leave continues to be a hot topic, though legislative developments have seemed to slow. While some companies, localities, and states have discussed or introduced varying levels of paid parental leave, an anticipated California proposal eclipses them all. California Governor Gavin Newsom campaigned on a platform that included six months of paid leave after the birth of a child. While the proposal is generous, and while many Americans support paid family and medical leave, funding and other questions remain. Perhaps legislation will be revisited following the president’s reassertion of his support for national paid family leave during his recent State of the Union address.

Business Takeaway: Parental leave is an important subject for workers today—and an area that may still have more questions than answers. For some companies, it may be advantageous (for retention or other purposes) to offer paid parental leave. For many others, it is simply not a realistic option. While the California offer is more generous than other proposals, it may be just a matter of time until some variation of paid parental leave becomes law. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on parental leave and related policies.

In the News

Ex-Employee Virtually Takes Over His Old Firm

Attorney Paul H. Green Jr., faced suspension for hijacking his former firm’s email address, posting lies about the firm's owner on Facebook, and communicating inappropriately with a client. The firm may have succeeded in changing the building’s locks, but it failed to adequately address digital vulnerabilities, with devastating consequences.

Business Takeaway: Green’s story highlights the potential damage that can be done by a disgruntled employee, either pre- or post-termination. Specifically, failure to lock down digital access to company computers or email invites sabotage, including theft of confidential information, client contact, and more. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information about how to secure your technology — especially relative to a departing employee.

Workplace Irony

Royce Redell Flowers Nash was hired by the City of Milwaukee Department of Employee Relations in 2017 to improve diversity in the ranks of city workers. In a strange twist, Nash now alleges he was fired because he raised concerns about racial discrimination. The city contends that Nash’s termination was “on the basis of performance and accountability.”

Meanwhile, Planned Parenthood has been accused of discrimination against pregnant employees. Reported issues from current and former employees include demotions and terminations while others allege they feared the repercussions of disclosing pregnancy to management.

London-based human rights organization Amnesty International has been accused of maintaining a toxic workplace. Allegations suggest that managers bully and humiliate staff and that the organization fosters a divisive and exclusionary workplace. The company culture was investigated after two staff members committed suicide within five weeks in 2018. Similar allegations have been lodged against the United Nations as well as the World Health Organization.

Business Takeaway: As we’ve indicated across many topics in past newsletters, any business/organization—big or small, for-profit or not-for-profit—is susceptible to such behavior and allegations of such behavior. Here we have allegations against organizations that, if true, go against their primary goals and objectives and, whether true or not, cast the organization in a negative light. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information on workplace discrimination.

Falling Prey to Predatory Small Business Loans

Confessions of judgment date back to the Middle Ages but have been illegal in the United States for decades—except in the case of New York business loans. A confession of judgment involves the borrower signing a statement relinquishing the right to defend him or herself in court. As a result, the lender can legally seize the borrower's assets by accusing the borrower of not repaying the loan. This has affected thousands of small businesses across the country. Having taken loans from merchant cash advance companies that took advantage of this law, these businesses now face the prospect of frozen assets or bankruptcy.

Business Takeaway: A reminder that businesses must scrutinize loan details prior to signing. Better yet, consult with someone who has experience identifying predatory lending language. If you have questions about confessions of judgment or other concerns about business loans, contact Mark at 414-446-8800 or mark@goldsteinsc.com.

Links of Note

Phoning It In

We've all observed the effects of cell phones at work, school, home, just about anywhere – on conversation, productivity, etc. A study by the Journal of the Association for Consumer Research suggests that it is not only the use of cell phones that affects people but the mere presence of cell phones which, if in the general proximity, reduce “available cognitive capacity.”

What's Your Attachment Style?

Time management coach and author Elizabeth Grace Saunders posits that there are four “attachment styles” that apply to the relationship between an individual and the workplace. These styles suggest why you may instinctually act against what your brain knows to be best—particularly as related to time and task management. Saunders also offers ways to address the shortcomings of each attachment style.

Strangest Thing We've Heard of Late

Stayin’ Alive, or When Life Imitates Art

In an episode of The Office, the employees learn CPR at work. Specifically, they are instructed to press down on the victim’s chest to the beat of the Bee Gees’ Stayin’ Alive. Cross Scott, a man with no prior CPR training, pulled over to assist a driver in distress and credits the episode and the Bee Gees in saving the driver’s life.