Third Quarter 2018

 

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In This Issue:

Legal Update

An Epic Conclusion to Wage Claim Disputes

Regulatory Update

How Would You Fare in an ICE Audit?

An Effective Solution for Small Businesses or the Death Knell for the Health Insurance Marketplace?

Workplace Trends

Not So Fast. Hiring in the Age of Low Unemployment.

A Hiring Practice That May Be Perpetuating Pay Gaps

In the News

Let's Wrap This Up! When Overtime Isn't Welcome.

Questioning Employee's Religious Beliefs in the Cold and Flu Season

The Challenge of Addressing Workplace Discrimination and Bias

Links of Note

Laughter is the Best (Office) Medicine

Support Your Team

The New Personality Test: How Would you Score on the Big Five?

Strangest Thing We've Heard of Late

Stanley’s Mustache

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

Legal Update

An Epic Conclusion to Wage Claim Disputes

In May, the Supreme Court ruled that businesses may implement and enforce arbitration clauses in employment contracts, reversing the Seventh Circuit’s 2016 decision involving a large Wisconsin employer. This decision has a substantial impact on how businesses handle wage claims as employers may require claims to be handled via private, individual arbitration rather than through the courts via class or collective actions. While the policy debate will no doubt continue, the legal precedent is now set.

Business Takeaway: Many businesses continued to use arbitration clauses despite the Seventh Circuit’s ruling—and those businesses will continue doing so. For those who removed arbitration clauses, or for those who never used them, this decision suggests you revisit the issue. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information on arbitration clauses and employment agreements.

Regulatory Update

How Would You Fare in an ICE Audit?

Between October 1, 2017, and May 4, 2018, U.S. Immigration and Customs Enforcement ("ICE") conducted about 60% more employer audits (2,282 audits total) than the same period in the prior year. ICE confirmed that it will continue the surge of audits, aiming for 5,000 by September 30, 2018. The agency hopes to cover between 10,000 and 15,000 companies each year moving forward. The audits have already led to over 500 employee arrests and over 600 civil immigration charges (including two dairy workers in Washington County), with more likely to follow.

Business Takeaway: In addition to the employee arrests, various employers have already been criminally charged through the ICE initiative. Per the head of Homeland Security Investigations Unit, Derek Benner, ICE is seeking to establish a “reasonable expectation” by employers that they will be audited in order to create a “culture of compliance.” Consider undertaking your own audit to ensure you are in compliance. Contact Michael at 414-446-8800 or michael@goldsteinsc.com if you have questions about employee I-9 forms or ICE compliance.

An Effective Solution for Small Businesses or the Death Knell for the Health Insurance Marketplace?

The U.S. Department of Labor (“DOL”) issued a final rule that allows small businesses to join together to create health insurance plans. These employer groups can be formed by small businesses within the same industry, regardless of location, or by unrelated businesses within the same city or state. While the rule is set to take effect on August 20, 2018, there is already word of a challenge which may result in a temporary injunction. Meanwhile, over 100 health insurers, including Brookfield’s Common Ground Healthcare, have filed suit for billions of dollars owed to insurers by the federal government.

Business Takeaway: As it stands, the final rule would have a profound effect on health insurance and the marketplace, and debates continue whether it would be for better or worse. Arguments include that it may make it easier for small businesses to develop lower-cost health insurance plans, but at the same time, may offer fewer benefits to those under the plan while driving up costs for those remaining in the marketplace. As a challenge to the final rule is likely, there may not be a way to leverage this development in the near future. Would the new rule address your business needs?

Workplace Trends

Not So Fast. Hiring in the Age of Low Unemployment.

Recently, fast-food restaurants have struggled with adequate staffing, despite the continued growth of the industry. Fast-food companies’ reliance in no small part on teen workers has resulted in a perfect storm, as the number of teen workers has gone down (about 15% since 2000), summer help has dwindled further (for a variety of reasons), and teens have found other hourly jobs that provide greater pay and benefits. In response to staffing needs, franchisees and restaurant owners have attempted to provide higher wages and other incentives to attract and retain employees while others have been forced to work the jobs themselves that they cannot fill.

Business Takeaway: With a low unemployment rate, many businesses are struggling to attract workers. Moreover, businesses have been hesitant to enforce company policies out of fear of losing the employees they have, presenting another set of difficult issues. Have you struggled to find and retain adequate talent at your business?

A Hiring Practice That May Be Perpetuating Pay Gaps

Various jurisdictions, including the City of Milwaukee, are contemplating banning salary history questions as part of the hiring process. While inquiring is still legal in most jurisdictions, many companies—including Amazon, Google, Wells Fargo, and others—have already eliminated this line of questioning from their hiring processes in light of recent lawsuits and concerns of perpetuating a pay gap. In the Ninth Circuit, an employer was recently found to have discriminated against a female employee by using her previous salary to pay her less than her male colleague.

Business Takeaway: This will be an ongoing debate, taking various forms. In the short term, know that the City of Milwaukee’s contemplated ban on salary history questions would affect only those applying for city jobs, leaving the private sector unaffected. Keep an eye out for additional lawsuits and policy changes or consider preemptively changing your business practices, as many already have. Stay tuned and contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on hiring practices.

In the News

Let's Wrap This Up! When Overtime Isn't Welcome.

An analysis of MLB extra innings between 2009 and 2016 by Michael Lopez reveals that umpire decisions skewed toward calls that would end the game. Baseball umpires are not paid overtime for games that go into extra innings, and Lopez’s research suggests this influences judgment calls in extra innings. This data is easily extrapolated to more traditional jobs and employees in terms of how overtime work is treated when there is no clear accompanying monetary incentive.

Business Takeaway: While this study related specifically to overtime work and compensation, it also speaks to the larger issue of employee motivation. It is important to remember that higher wages and/or overtime pay incentivize employees, but only to a point. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information on employee retention and engagement.

Questioning Employee's Religious Beliefs in the Cold and Flu Season

The Department of Justice has filed a lawsuit in federal court against Ozaukee County after the Equal Employment Opportunity Commission (“EEOC”) found probable cause to believe that county-owned Lasata Care Center engaged in religious discrimination. Lasata required that all employees, other than those with a religious exemption, receive an annual flu shot. When a certified nursing assistant could not obtain a clergy letter to validate her religious beliefs as required by Lasata’s policy, she was told she had to get the shot or lose her job. The lawsuit focuses on Lasata’s unwillingness to accept alternative proof for the sincerity of the employee’s religious beliefs.

Business Takeaway: A timely reminder to audit your own company policies to ensure that such requirements are not so stringently enforced as to invite issues. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for help with company policies or more information on religious discrimination.

The Challenge of Addressing Workplace Discrimination and Bias

In May, Starbucks closed 8,000 U.S. stores for several hours for employee anti-bias training. The training followed an April incident at a Philadelphia Starbucks involving two men of color arrested while waiting for a friend. While such training cannot, in and of itself, stamp out unconscious biases and unintentional discrimination, for Starbucks it represented a big, public step.

Business Takeaway: This development reminds us of the more subtle forms of discrimination and bias in the workplace and beyond—and that not only can these issues occur among your employees, they affect customers too. Our recent trainings, and conversations with clients regarding training, have surfaced a variety of important issues (e.g., supervisors who did not know how to handle complaints, employees who did not feel comfortable raising issues). What sort of training do you do, and how do you know it is effective? Contact Adam at 414-446-8800 or adam@goldsteinsc.com if you are interested in discussing these questions or scheduling training.

Links of Note

Laughter is the Best (Office) Medicine

We are conditioned to believe that too much laughter at work might send the wrong signals to our co-workers (e.g., we are not busy enough, we don’t take our work seriously, etc.). However, recent studies suggest that laughter can stimulate the mind in ways that deep focus cannot, providing boosts in both creativity and problem-solving.

Support Your Team

While cognitive diversity tends to create an efficient problem-solving team, this trait alone will not produce the best results. Recent studies profiled in the Harvard Business Review suggest that another key component to productive teams is psychological safety, meaning that teams are supportive of team members when they speak up, which encourages participation, risk-taking, etc.

The New Personality Test: How Would you Score on the Big Five?

Not everyone believes in the merits of personality tests and, specifically, how these test should be used in determining workplace “fit.” A new personality test, called the Big Five, seeks to determine where you fall on the spectrum for each of the test’s five traits—extroversion, agreeableness, conscientiousness, neuroticism, and openness to experience—rather than try to place you into a predefined personality type. What test(s) do you rely upon?

Strangest Thing We've Heard of Late

Stanley’s Mustache

In one memorable episode of The Office, coworkers test their memories regarding whether Stanley, a long-term employee, has a mustache. This episode comes to mind in light of recent discussions of the reliability of eyewitness accounts and, particularly, cross-racial identification. Per the Innocence Project, misidentification has been involved in 70% of DNA exonerations. While the stakes may have been low for Stanley’s coworkers, our eyes and minds do play tricks on us—in the world of work, and elsewhere.

 

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