First Quarter 2013

 

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In This Issue:

Firm News

In the News

The Affordable Care Act (ACA) and workplace wellness programs

25 years later: The I-9 Form may be getting an overhaul

That’s a Job? (An occasional series)

It’s Baaack

Litigation Update

No such thing as a free lunch – or is there?

Harassment by non-employees

The perils of employees driving company-owned vehicles “off the clock”

The ADA vis-à-vis employee references

The Strangest Things We’ve Heard of Late

Published or Quoted Elsewhere:

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

On February 1, 2013, we will celebrate our fifth anniversary. How time flies! We are beyond grateful for your trust and support, and recognize that this is the single biggest reason for our continued success. Thank you.

We would also like to introduce the newest member of our staff: Jill Harenda. Jill is our “Jack [or Jill]-of-all-trades,” the friendly voice you hear on the phone, and the artist who tends to our new magic boards. Jill brings over 15 years of legal and accounting experience to the firm.

In the News

The Affordable Care Act (ACA) and workplace wellness programs

There has been a lot written on the Affordable Care Act (ACA) in recent weeks, with much more to come. Our own FAQ page on the subject has been one of the most popular installments of this newsletter.

Where do wellness programs fit in this new landscape? For example, how do we “incent” employees to participate in health and fitness training, diet programs, etc.; and how do we treat those who choose not to participate? How do we measure success – by participation only, or by tangible, medical results (i.e., weight loss, BMI reduction, lower cholesterol/blood pressure, etc.)?

Recently, Aurora Healthcare made the news for a new wellness program that includes a $13.33 bi-weekly credit for employees who meet a “weight target” or have a BMI of 30 or less. Needless to say, some Aurora employees reacted quite negatively.

Remember that wellness programs must comply with discrimination laws and health care reform legislation:

  • Obesity is considered a disability under the Americans with Disabilities Act (ADA, and ADAAA), and the ADA restricts disability-related inquiries by employers.
  • The Health Insurance Portability and Accountability Act (HIPAA) states that eligibility for a group health care plan may be conditioned on the completion of a health risk assessment prior to enrollment.
  • Health Plans beginning on or after January 1, 2014 will have rules relative to wellness under the Affordable Care Act. Under the rules:
    • Employers may give bonuses (or impose penalties) of up to 30% of the employee’s cost of health care coverage for meeting (or failing to meet) outcome-related wellness guidelines; and up to 50% related to tobacco cessation.
    • Employers must notify participants of an opportunity to qualify for similar rewards through a reasonable alternative program. This is called the “reasonable alternative standard” and is utilized when a participant cannot satisfy the original standard due to a medical condition.

Read more on the topic here.

25 years later: The I-9 Form may be getting an overhaul

The United States Citizenship and Immigration Services (USCIS) is weighing various changes to the I-9 form. Proposed changes are currently working their way through the USCIS rule-making process. For updates on the I-9 form, you may subscribe to USCIS’ I-9 Central.

Until the new form is in place, you should continue using the current form (despite its 8/31/12 OMB “expiration date”).

Concerns expressed about the proposed new I-9 form relate to its increased length (from one page to two) and instructions (from three pages to six), the expense and administration of additional verification requirements, record-keeping requirements, and HR software updates.

That’s a Job? (An occasional series)

Do you have a soon-to-be graduate who is looking for work? Many employers claim the great place to work (“GPTW”) designation, and it is not uncommon that such a designation is entirely unrelated to pay and benefits. Even among those in the GPTW category, the Oscar Mayer Weinermobile stands out. Oscar Mayer operates six Weinermobiles, and hires 12 drivers per year to shuttle them from engagement to engagement. Read more about “Hot Dog High” and the other aspects of driving a Weinermobile.

It’s Baaack

The flu is dominating the newswires these days. We want to hear from you. Has your workplace been affected? What have you done to combat it (e.g. flu shots, sending employees home, disinfectant, etc.)? If so, have you been successful? Call 414-446-8800 or contact kris@mjglegal.com with your war stories.

Litigation Update

No such thing as a free lunch – or is there?

Baptist Memorial Hospital in Michigan had a practice of automatically deducting 30 minutes for meal breaks for each employee each day, even if the employee did not actually take a lunch. The hospital contends that employees understand that if they do work through their meal break, they are to report that time as paid time, in which case they will be paid accordingly. A former employee challenged the hospital with a collective action case, contending that the automatic deduction was unlawful. The Sixth Circuit denied collective action status, noting that the hospital did pay employees for time claimed, did not discourage reporting, and did not retaliate against employees who claimed additional work time.

Employer take-away: Beware of simply shifting the onus for reporting overtime to employees. A policy that requires such reporting must be clear, distributed to all employees, and honored by the employer.

Harassment by non-employees

Certain doctors with hospital privileges at Puerto Rico’s Children’s Hospital are independent contractors. An employee at the hospital alleged that two such doctors subjected her to sexual harassment, both verbal and physical. Despite notifying hospital management, the harassing behavior continued. The court held that an employer may be held liable for failure to correct known harassment, even if that harassment is perpetrated by individuals who are not employees. The court went further, noting that certain defenses available under Faragher and Ellerth (the two 1997 Supreme Court cases defining the methodology for analyzing sexual harassment claims involving supervisors) do not apply when the alleged harasser is not a supervisor.

Employer take-away: In cases where non-employees have privileges on your site, you may be liable for their actions. You will be judged on whether you “knew or should have known” of such behavior and, if so, “failed to take appropriate action.”

The perils of employees driving company-owned vehicles “off the clock”

Terry Lowe worked for Unlimited, Inc., a manufacturer of replacement vinyl windows. Unlimited provided Lowe a company-owned minivan for work purposes. Lowe had a second job working as a Pizza Hut delivery driver.

If you guessed that Lowe used the Unlimited minivan to deliver pizzas, you are correct. This was unauthorized by Unlimited, and Lowe knew it. If you guessed that, while delivering pizza, Lowe got into an accident and wrecked the minivan, you are correct again.

The driver of the other car sued Unlimited’s insurer. At trial, the jury ruled in favor of Unlimited and its insurer, as Unlimited specifically prohibited use of the minivan for non-work purposes. The trial and appellate courts agreed.

Employer take-away: A written policy that prohibits unauthorized use of company-owned vehicles can go a long way in such a circumstance. How explicit have you been about the permitted and non-permitted uses of company-owned vehicles (and other company-owned property)? Call 414-446-8800 or contact kris@mjglegal.com for a complimentary review of your current policy.

The ADA vis-à-vis employee references

Mr. Messier experienced difficulty finding a job; so much so that he started to surmise that it might relate to information being provided by his prior employer, Thrivent Financial, during the reference process. As it turns out, he was right. Mr. Messier suffered migraines, which played a role in him ultimately, and rather abruptly, quitting his job for Thrivent. Thrivent said as much to reference-seekers, and Messier (and the EEOC) sued Thrivent for the unauthorized disclosure of Mr. Messier’s medical information. The District Court and Court of Appeals concluded that Thrivent had not violated the law, as the information came to Thrivent not by way of a “medical inquiry” but, rather, a simple inquiry from Mr. Messier’s supervisor regarding why he had not reported to work.

Employer take-away: Remember also that Sec. 895.487, Wis. Stats protects employers responding to reference checks by requiring that the employee provide “clear and convincing evidence that the employer knowingly provided false information… made the reference maliciously or…violated state anti-discrimination law.” Otherwise, the employer is presumed to have acted in “good faith.”

The Strangest Things We’ve Heard of Late

The Iowa courts have a reputation for “interesting” rulings. In one recent case, the Iowa Supreme Court ruled that a dentist acted legally when he fired a long-time female assistant for being “irresistible” and, as such, posing a threat to his marriage. After consulting his wife and pastor, the dentist decided that he simply could not work with his female assistant any longer. [Somewhat surprisingly, the parties seem to agree that they had a long-term and friendly, but never intimate, relationship.] The court concurred with the dentist, ruling that this was not a case of gender discrimination but, rather, “an isolated employment action based on personal relations” and, accordingly, not gender-based. You be the judge. (Decision, not photos.)

Employer take-away: A reminder that the law in this area is constantly evolving, sometimes ahead of, and sometimes trailing, popular sentiment.

If you would like more information about any of the cases, laws, or other developments cited, feel free to contact Mark J. Goldstein S.C.

Upcoming Events

2/6/13

Legal Implications Surrounding the Changing Nature of Work in this Age of New Technology and Social Media

2/13/13

Legal Update

3/20/13

The Affordable Care Act

4/13/13

Legal Update

7/23/13

FMLA Compliance


For more information on upcoming events, click here.