First Quarter 2011



In this issue:

Legislative Update

Discrimination, Harassment, Retaliation Claims Rise

Workplace Posters

Law Regarding Captive Meetings Unaffected by Change in Wisconsin Law

Seven States Increase Minimum Wage

Litigation Update

Court decisions and settlements of note

New and pending litigation of note

In the News

More Fallout, and Lessons, from NPR Termination of Juan Williams

There's an App for That

Published or quoted elsewhere:

Are Paid 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 - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

(Wisconsin Lawyer - Vol. 81,
No. 2, February 2008)

Previous Issues

Legislative Update

Discrimination, Harassment, Retaliation
Claims Rise

The Equal Employment Opportunity Commission (EEOC) reports the filing of 99,922 charges of discrimination, harassment or retaliation in the 2010 fiscal year (ending September 30, 2010). This is the highest number of charges received per year in the history of the EEOC. The EEOC also reports securing more than $319 million for claimants during the same period.

Employer take-away: For a variety of reasons, there continues to be a lot of activity in this area, and the exposure is great. Time and energy spent identifying, documenting, and resolving such complaints is time and energy well-spent. More particularly, a good exit interview is one method of detecting such exposure.

Workplace Posters

State and federal law require that employers prominently display posters articulating various workplace rights. Last year, the state updated three of these posters (regarding employment law, the WFMLA, and unemployment benefits). See:

The National Labor Relations Board (NLRB) recently proposed that a poster regarding employee rights under the National Labor Relations Act (NLRA) be added to this list.

Employer take-away: Stay tuned, and prepare to free up some additional space on the break-room wall.

Law Regarding Captive Meetings Unaffected by Change in Wisconsin Law

In May 2010, Wisconsin became the second state in the nation to implement a law inhibiting employers from holding “captive meetings” (mandatory employee meetings, held during work time, often to talk about the pros and cons of unionization). The new law states that an employer cannot discriminate against employees who refuse to attend such meetings. Two Wisconsin business groups sued to overturn the law, claiming that it violates federal labor law (which specifically allows captive meetings). In November 2010, the state of Wisconsin settled the case by, among other things, agreeing not to enforce the new law. See:

Seven States Increase Minimum Wage

Effective January 1, 2011, seven states increased their minimum wage. These states (Arizona, Colorado, Montana, Ohio, Oregon, Vermont and Washington) tie minimum wage to the consumer price index, resulting in raises of between 9¢ and 12¢ per hour as of the first of the year. Nationally, minimum wage ranges from $5.15 per hour (Wyoming) to $8.67 per hour (Washington). All in all, 24 states have a minimum wage in excess of the federal minimum wage ($7.25 per hour), 17 states (Wisconsin included) have a minimum wage at the federal finimum wage, four below the federal minimum wage, and five states have no minimum wage. Some states either exempt small employers from minimum wage or set a separate minimum wage for small employers. For the particulars, see:

Litigation Update

Court Decisions and Settlements of Note

  • In December 2010, Omnicare, Inc., agreed to pay $195,000.00 to five women relative to a sexual harassment lawsuit filed by the EEOC. The suit alleged that a pharmacy manager at Omnicare’s Pinnacle Pharmacy in La Crosse engaged in repeated acts of sexual harassment, including “approaching female employees from behind and grinding his crotch on them, and making sexually explicit and demeaning comments to female employees.”
  • Employer take-away: Mad Men-style sexual harassment is as pervasive as ever. Job sites that are (1) small, and away from headquarters; and/or (2) occupied by young female employees, and especially students or interns, seem to be particularly susceptible.

  • In 2009, then-Milwaukee County Executive Scott Walker instituted, as an emergency budget measure, a reduced 35-hour work week for county employees. In December 2010, the Wisconsin Court of Appeals ruled that this was a violation of Milwaukee County’s collective bargaining agreement with the union (District Council 48 of AFSCME). This means that Milwaukee County may be liable for millions of dollars in damages to the union, despite the fact that Walker ultimately opted for furlough days instead of the 35-hour workweek and, regardless, the employees never actually worked the hours for which they may ultimately be due compensation. See:
  • Employer take-away: Look for more such battles on the horizon – pitting the political will to reign in costs against the language of existing collective bargaining agreements and other past promises.

  • As you may know, Wisconsin’s law banning texting while driving is now in effect (fines up to $400). What you may not know is that texting while driving, and specifically while driving for work, is also prohibited by various federal laws:
    • Effective January 26, 2010, the Federal Department of Transportation prohibits commercial vehicle drivers (e.g. truckers, bus drivers, etc.) from texting while driving (civil and criminal penalties, up to $2,750).
    • On October 4, 2010, OSHA issued an open letter to employers stating that employers have a “responsibility and legal obligation” to have a “clear, unequivocal and enforced policy against the hazard of texting while driving.” Employers violate OSHA “if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their job.”
    • In October 2009, President Obama signed an executive order banning federal employees from on-the- job texting while driving.

    According to the federal DOT, 5,400 people died in 2009 related to distracted driving.

    Employer take-away: As an employer, it is imperative to have a strong policy in place on this topic, and the ability to enforce it. Consider enhanced gps monitoring, post-accident electronic forensics, apps that lock phones in motion, etc. Contact us (414-446-8800,, should you require any assistance in this regard.

New and Pending Litigation of Note

  • Dart Chart Systems fired, and then sued, its executive VP of sales for working as a sales manager for Hewlett-Packard (at $166 per hour) at the same time he was employed by Dart Chart Systems (at $225,000 per year). Dart Chart seeks recoupment of the $820,000 it paid to the executive VP and his team as well as punitive damages.
  • Employer take-away: When bringing on a new, high level employee, we often focus on whether, and to what extent, they have a non-compete agreement with a prior employer. This case reminds that the obligation of the new employee to devote the whole of your time, attention, and ability to the business going forward is not to be overlooked.

  • Earlier this year, the EEOC found probable cause that a former employee of Michels Corp. was terminated after revealing to her superiors that she had a relapse of alcoholism (after 14 years of sobriety) and voluntarily provided the company access to her medical and EAP records. The lawsuit that followed, currently pending in the U.S. District Court in Milwaukee, claims an ADA violation and seeks compensatory and punitive damages.
  • Employer take-away: When an employer seeks a broad release for an employee’s medical and EAP records, prompted perhaps by the “reasonable accommodation” question, the employer may also be unintentionally laying the groundwork for a “regarded as disabled” or “record of disability” ADA claim.

In the News

More Fallout, and Lessons, from NPR Termination of Juan Williams

In October 2010, National Public Radio (NPR) fired commentator Juan Williams after Williams made incendiary comments as a guest on the O’Reilly Factor on Fox News [Williams spoke of his unease whenever he sees a fellow airline passenger dressed in “Muslim garb.”] The termination received national media attention, culminating in calls for the end to government funding for National Public Radio and, somewhat ironically, a multi-year, multi-million dollar contract for Williams with Fox News.

On January 7, 2011, a law firm hired by NPR to investigate the termination advised that the termination was entirely legal (i.e., it concluded Williams breached his contract with NPR). On the other hand, the NPR Board conceded that the manner in which Williams was terminated, by phone and followed by public comments arguably disparaging Williams, was “poorly handled.” As a result, NPR proceeded to terminate its senior vice president for news (an employee with 29 years of service) and deny its CEO her 2010 bonus.

Employer take-away: We often focus on the exposure created by a termination in terms of claims for discrimination, retaliation, unpaid wages or how it might affect the terms of an existing non-competition agreement. This case is a reminder that there is other exposure as well – sometimes personal exposure – even if the basis for termination is entirely lawful and grounded in fact. In other words, the process of termination is as important as the basis for termination.

There's an App for That

Hollaback ( is a new website, and an even newer App for the iPhone. It allows individuals to instantaneously document and report harassing behavior that might occur on the street, in the subway, etc. (e.g., suggestive comments, heavy breathing, groping, etc.). Data is mapped and posted on the web, and perpetrators exposed - a kind of 21st century wall of shame.

Employer take-away: It is not hard to imagine how this might soon make its way into the workplace, and the headaches it might cause for HR professionals. So much for “innocent until proven guilty.”

We'd love to hear your feedback. Send comments to Mark Goldstein.


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