First Quarter 2014

 

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In This Issue:

Firm News

In the News

Affordable Care Act Update

Legislative and Regulatory Update

Arrest/ Conviction Record Discrimination

Social Media Privacy Rights

Legal Update

Do Employers Have Any Alternatives to Overtime Pay for Non-Exempt Employees?

NFL Mired in Bullying Scandal

Quick Notes

The Strangest Things We’ve Heard of Late

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 are so honored to be the subject of a feature piece in the current edition of the Wisconsin Law Journal. Take a look at this article on our firm.

In the News

Affordable Care Act Update

Last week it was announced that the Employer Mandate (otherwise known as the “Pay or Play” penalty) has been delayed until 2016. Don’t be fooled. This extension only applies to employers of between 50 and 99 employees, and there is a penalty in place for employers who intentionally drop below the 100 employee threshold.

For the rest of us, we must turn our attention to calculating measurement periods for the purpose of determining our potential penalty and, accordingly, whether we wish to pay the penalty or continue offering (or explore offering) coverage. There are three measurement periods. The standard measurement period is 3-12 consecutive months during which we measure the number of employees working an average of 30 hours per week, or 130 hours per month. An administrative period, followed by a stability period, complete the calculation. Needless to say, there is some strategy involved here. Contact Kris (414-446-8800, kris@goldsteinsc.com) for assistance with these calculations.

Legislative and Regulatory Update

Arrest/ Conviction Record Discrimination

Talk continues about the EEOC’s enforcement guidance and its 2012 pledge to aggressively pursue cases of discrimination relative to an applicant’s or employee’s arrest or conviction record. See the latest here.

Coupled with Wisconsin law on the subject, and the way in which the Fair Debt Collection Practices Act comes into play, this is an increasingly busy area for litigation.

Employer take-away: The line between an employer’s exposure (to customers and others) for negligent hiring and its exposure (to an applicant or employee) for arrest/conviction record discrimination is a very fine one. With respect to arrest/conviction record discrimination, the law is extremely nuanced and, at times, counter-intuitive. Consult with legal counsel before making a determination on a candidate with an arrest or conviction record of note.

Social Media Privacy Rights

In late January, the Wisconsin Assembly passed a bill protecting the privacy of applicants and employees using social media. The bill, A.B. 218, prohibits employers from asking applicants and employees for access to their social media and email accounts. A companion Senate bill, S.B. 223, previously passed unanimously. The bill, now on the Governor’s desk awaiting signature, explicitly exempts from liability the monitoring of Internet and email accounts on company equipment as well as public postings.

Employer take-away: Technological developments provide more and more tools for employers – in the hiring process, internal investigations, and efforts to safeguard the corporate brand. This new legislation, part of a national trend, reminds us that the privacy rights of employees, and job applicants, still come into play.

Legal Update

Do Employers Have Any Alternatives to Overtime Pay for Non-Exempt Employees?

The Fair Labor and Standards Act (FLSA) includes a little-known alternative to the traditional overtime calculation of one-and-one-half times the regular rate of pay for hours over 40 per work week. This alternative is commonly known as the Fluctuating Work Week (FWW). The FWW (1) extends the total hours from 40 to “some other fixed weekly work period;” and (2) allows half instead of one-and-one-half times compensation for hours above the FWW.

Employer take-away: Two important steps, frequently missed by employers: (1) the employee must be paid on a salaried basis; and (2) there must be a “clear mutual understanding” between the parties with respect to the agreement. In a recent Fifth Circuit case, the court reminded that this second element is very difficult to meet absent a signed agreement.

NFL Mired in Bullying Scandal

Attorney Ted Wells, charged with investigating the Miami Dolphins bullying scandal, just issued his report, and it is pretty scathing. Consider the following:

"We conclude that three starters on the Dolphins offensive line, Richie Incognito, John Jerry and Mike Pouncey, engaged in a pattern of harassment directed at not only Jonathan Martin, but also another young Dolphins offensive lineman…and [an Assistant Trainer]. We find that the Assistant Trainer repeatedly was the object of racial slurs and other racially derogatory language. Player A frequently was subjected to homophobic name-calling and improper physical touching. Martin was taunted on a persistent basis with sexually explicit remarks about his sister and his mother and at times ridiculed with racial insults and other offensive comments."

"As an initial matter, Martin developed an odd but seemingly close friendship with Incognito. Not only did both linemen report that they enjoyed socializing together, the evidence also shows that they often communicated in a vulgar manner. Incognito contends that the conduct about which Martin complains was part of locker room banter meant in good fun and that Martin was a willing and active participant in verbal sparring, never letting on that he was hurt by it. Martin claims that at times he participated in off-color joking with Incognito and others in an attempt to fit in, with the hope of reducing the treatment he found offensive. According to our consulting expert, a psychologist who focuses on matters of workplace conduct, such a reaction is consistent with the behavior of a victim of abusive treatment."

See the full report.

Employer Take-Away: Amidst all the reaction to the report, two observations dominate: (1) What does this case say about an employer’s ability to identify, and stop, bullying and discrimination? (2) If a 300-pound NFL offensive lineman can be victimized, what does this mean for those of us in more "ordinary" workplaces? As stated in Slate:

"This report should be required reading in management courses and for anyone who wonders how ugly, demeaning, and corrosive treatment can lie beneath a façade of 'all in good fun' workplace 'teasing.'"

"How do you bring a guy like this to his knees? If you’re a team leader like Richie Incognito, it’s easy. The genius of this report is how clear that becomes as you read."

Quick Notes

  • The Equal Employment Opportunity Commission’s annual report is out, and reflects a record $372.1 million in monetary relief secured on behalf of complainants. See the full report.
  • As you may recall, the National Labor and Relations Board (NLRB) stated its intention to require that private sector employers post notice to employees of their rights under the National Labor Relations Act (NLRA). After a few years of litigation, the NLRB has now officially nixed its posting requirement. See the latest.

The Strangest Things We’ve Heard of Late

You may have read in this space about generational issues and helicopter parents. Now for a story combining the two. The following is a Craigslist post from the parent of a Millennial:

I will pay an incentive of 10% of his annual income to a Law firm that provides half time attorney work for my son who recently passed the California Bar examination. He graduated from an excellent Law School and his undergraduate degree is from UCLA. He passed the Bar in 2013 and is a member of the California Bar Association and the Orange County Bar Association. He has clerked in the Public Defender's Office, Family Law Offices, and Civil Rights Law offices. He is especially interested in Tax Law, Family Law, and Immigration Law but will accept any position. Resume on request.

Employer take-away: One of many signs that the world of work (and recruiting, and parenting) is changing.

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

Upcoming Events

3/20/14

Legislative and Legal Update

SRKA


4/10/14

The Legal Process

Carroll University


For more information on upcoming events, click here.