First Quarter 2015

 

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In This Issue:

Legislative Update

FLSA White Collar Exemptions - Revised

Workplace Trends

Vaccinations

The Usual Suspects

Ideas That Work

HR Practices

By the Numbers

Personality and Hiring

Taping Employees to Build Trust?

Legal Update

The Importance of Proof of Receipt

Pregnancy Discrimination

Regulatory Update

EEOC Update

OSHA Updates

The Strangest Thing 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

Legislative Update

FLSA White Collar Exemptions - Revised

The Department of Labor will soon be revealing its modifications to the Fair Labor Standards Act White Collar Exemptions. The DOL announced this initiative just about a year ago, and the modifications were expected by November 2014. When that deadline came and went, we were told "early in the new year" (meaning this month).

As you may know, those who meet the statutory exemption standard (i.e., they receive a salary above a set amount – currently $455/week - and meet one of the duties tests set forth in the statute) are exempt from the requirements of minimum wage and overtime pay. More importantly, those who do not meet the standard must be paid minimum wage and overtime pay. Employers often make the mistake of assuming all salaried employees are exempt (forgetting about the duties tests), or simply not paying one and one-half times an employee’s hourly rate for hours worked over 40 per week.

Among the expected revisions are: (1) doubling the salary threshold – from $455/week to $970/week (or roughly $23,000/yr to $50,000/yr); (2) requiring proof that exempt employees spend more than 50% of their time actually performing exempt duties. Stay tuned.

Employer take-away: How might you fare should these anticipated revisions go into effect? How confident are you regarding your current classifications of exempt and non-exempt employees? Needless to say, the FLSA is a bit more nuanced than the outline set forth above. Contact us should you have any questions or wish to discuss, or schedule an audit of, your current classifications.

Workplace Trends

Vaccinations

News of a measles outbreak at Disneyland, and the ensuing controversy regarding vaccination, has prompted employers to revisit their own vaccination policies (and the question of whether they even have one). This is especially so for those working with vulnerable populations (e.g. nursing homes, daycares, elementary schools). In the workplace, this presents a variety of complications – from the legalities of insisting upon mandatory vaccination, to measles as a condition requiring ADA accommodation. What is your approach to this issue? Contact us if you have any questions about your existing policy or a policy you might implement (mark@goldsteinsc.com or 414-446-8800).

Employer take-away: At a minimum, encourage your employees to check their own immunization records (Wisconsin Immunization Registry), and do so yourself. We have already seen a variety of surprises pop up.

The Usual Suspects

If asked, most people would identify meetings and email as the biggest time wasters in their work day. And they’d be right. Employers who have used data-mining tools to uncover productivity problems have discovered that unnecessary meetings and emails are responsible for the majority of productivity problems.

Reinforcing this claim, an AtTask survey of US workers at large companies (1,000 or more employees) found that only 45% of workers’ time is spent on primary job duties. The rest? 14% on email and 40% on meetings, administrative tasks, and "interruptions."

Of course, this does not include time spent on personal tasks such as visiting social media sites and shopping online – which can be significant. According to ComScore, Cyber Monday spending in 2014 reached $2 billion, with 46% of sales occurring between 9 am and 5 pm eastern time.

Employer take-away: Two potential approaches here – (1) a concerted effort to improve workplace productivity – e.g. reorganizing work spaces, blocking certain websites, etc.; (2) a "recalibration" of expectations with respect to productivity and, more to the point, where precisely value is added and how precisely that is achieved. Here's a humorous look at the effectiveness of conference calls.

Ideas That Work

A growing number of businesses are offering employees flexibility in how, when and where they work. The Society for Human Resource Management (SHRM) has created a database of ideas relative to workplace flexibility being implemented by companies around the country. Peruse SHRM’s "When Work Works" website for ideas relative to, for example, your state or geographic region, your industry (e.g., healthcare, manufacturing), or types of leave (e.g., caregiving leave, educational opportunities).

Employer take-away: Flexibility with respect to work is not a new concept, but making it work for employee and employer is more difficult than meets the eye. What has changed, it seems, is employers’ desire to explore flexible work arrangements for their own purposes.

HR Practices

By the Numbers

HR departments are in a bit of a quandary. The availability of big data on workforce issues puts them in position to guide corporate personnel decisions like never before – if only there were people on staff who could interpret the data.

It appears, for the time being, that technology has advanced beyond the typical department’s ability to use it. As a result, some HR departments are taking steps to train staff in data science. They recognize that staff who can interpret employee data and offer actionable insights will be empowered to help company managers make informed, effective personnel decisions.

Employer take-away: Ironically, perhaps the bit data on this very HR skills gap will lead to greater emphasis on data science skills in training and hiring future HR personnel.

Personality and Hiring

Personality traits are playing a larger role in hiring decisions today, according to ExecuSearch’s 2015 Regional Hiring Outlook. A survey of more than 200 employers reveals that a majority are using behavioral and personality-based questions to help determine whether the candidate’s personality is a good fit for the company. The survey also revealed that finding, and keeping, qualified candidates is the most significant challenge for employers in 2015.

In related news, personality tests have become a commonly used hiring assessment tool for customer service jobs. These tests are used to measure the mood traits and cognitive abilities of potential workers. They ask prospects to respond to statements such as "Over the course of the day, I can experience mood changes." While companies may like this type of data-driven approach to hiring, the EEOC is exploring whether these tests discriminate against people with, for example, depression.

Employer take-away: There are a wide variety of these tests, some linking back to the Myers-Briggs profiles, some specific to an industry (e.g., retail, legal), and some specific to job duties (e.g., customer service). Contact us if you would like assistance understanding the various tests available or picking a test specific to your hiring needs (mark@goldsteinsc.com or 414-446-8800).

Taping Employees to Build Trust?

File this under an idea whose time hasn’t quite come. Bridgewater Associates, a $150-billion hedge fund, records all of its employees’ conversations (except those regarding proprietary trades or personal issues) as part of its "culture of transparency." As a side note, 35% of Bridgewater’s new hires don’t survive 18 months.

Employer take-away: What is the best way to build a culture that values honest communication? It requires a balance of "transparency" and safe spaces for sensitive conversation. Bridgewater clearly prides itself on a strong culture and, as part of that culture, has decided to operate on the far end of the "transparency" spectrum. This may be related to the history of the industry it is in (and perhaps as a way to distinguish it from others in its industry). Bridgewater may also be leveraging the advantages of better recording devices, higher capacity storage, search tools, etc. For the rest of us, the balance is a very delicate one.

Legal Update

The Importance of Proof of Receipt

The decision against the employer in Lupyan v. Corinthian Colleges, Inc. highlights the importance of proof of receipt in cases involving employee notifications. Although Corinthian Colleges could prove that it sent FMLA notices to Ms. Lupyan while she was on leave, it could not prove she actually received them. Ms. Lupyan claimed she had not and, accordingly, Corinthian Colleges was denied summary judgment on Ms. Lupyan’s FMLA claim.

Employer take-away: This ruling has implications for many types of employer notices (e.g., ADA, COBRA, ERISA, FCRA). Best practice is to send notice via regular and certified mail, to the employee’s last known address. That way, if you do not received a signed receipt for the certified mail copy, the fact that the regular mail copy is not returned can also establish receipt (the "mailbox rule"). If the regular mail copy is returned, it provides you with notice of non-receipt (and perhaps a forwarding address). Needless to say, email to the employee’s personal email address, if you have one on file, is another good way to supplement notice via certified mail. Don’t forget to request delivery and read receipts.

Pregnancy Discrimination

A former AutoZone employee was recently awarded nearly $186 million in a wrongful termination and pregnancy and gender discrimination lawsuit she brought against the company. The woman claimed she was told by her employer that pregnant women cannot handle the job and was ultimately demoted after she gave birth. In her new position, she claims she was asked to work long hours, do work over again without reason, and yelled at. She filed a complaint with the State of California, and was subsequently terminated.

In another pregnancy discrimination case, the United States Supreme Court is hearing arguments in Young vs. United Parcel Service. The Young case asks whether a company discriminates by refusing to provide accommodations to a pregnant woman - accommodations it might provide in a Worker’s Compensation or Americans with Disabilities Act context, or if mandated by state law.

When Young became pregnant, she sought a "light duty" assignment relative to her doctor’s orders regarding lifting heavy objects. UPS denied this accommodation. UPS claims it only offered light duty to those injured on the job or requiring an ADA accommodation and, accordingly, was not required to offer similar accommodations to pregnant women. UPS also contended that lifting 70 lbs. was an essential function of the "air driver" position Young occupied.

NOTE: UPS has since changed its policy, stating that it accommodates pregnancy in all such circumstances, regardless of applicable state law.

Employer take-away: The Young case involves an interpretation of the 2008 amendments to the Americans with Disabilities Act, which expanded the scope of impairments that qualify as disabilities to include impairments that substantially limit an individual’s ability to lift, stand or bend. The question is whether limits imposed by pregnancy fall under this rule. Regardless of the ultimate determination, do know that this is an area with more activity in recent months and years. Consult legal counsel before making determinations with respect to accommodating, or not accommodating, pregnant employees.

Regulatory Update

EEOC Update

The EEOC Enforcement and Litigation Data statistics are out, and retaliation continues to be the most common allegation. In fact, the percentage of EEOC Charges alleging retaliation was the highest ever (42.8 percent of Charges filed) in 2014.

Employer take-away: As we have so often cautioned, the filing of a Charge costs the employee/former employee nothing (nor does the checking of an additional box on the Charge). With respect to retaliation, a disgruntled employee is often times left with the perception that an adverse employment decision must relate to their age, race, gender, or prior complaint. Doing some work with respect to messaging around the adverse employment action on the front end has saved our clients considerable time, energy, and money spent in litigation. Contact us to learn more (mark@goldsteinsc.com or 414-446-8800).

OSHA Updates

Effective January 1, 2015, OSHA’s updated injury and illness recordkeeping and reporting requirements are in effect. Employers are now required to report work-related inpatient hospitalization, as well as amputations and the loss of an eye within 24 hours of learning of the injury. These new reporting requirements affect all employers covered by OSHA, including those who are partially exempt from maintaining injury and illness records (NOTE: the exemptions have also shifted a bit, although there is still a "recordkeeping exemption" for employers with 10 or fewer employees).

In related news, OSHA is taking steps to change the time period for pursuing workplace-injury-recordkeeping violations from six months to five years. Stay tuned.

Employer take-away: If you are an employer who is required to keep Form 300 (the Injury and Illness Log), have you posted your 2014 annual summary of work-related injuries and illnesses (required to be posted February 1 through April 30)? Use Form 300A to comply with posting requirements. Contact us if you have any questions – mark@goldsteinsc.com or 414-446-8800.

The Strangest Things We’ve Heard of Late

In Shank v. CRST, the California Court of Appeals upheld a $2 million jury award to a female truck driver trainee who claimed, among other things, that she was sexually harassed, assaulted, and ultimately raped, by her male driving trainer. CRST covered the cost of its training program in exchange for a six month commitment by the trainee. Shank testified she felt compelled to share a room (and bed) with her male trainer, relative to the “economic pressure” of training (CRST would have charged her half of the additional cost of a second room). Shank further reported: "[i]t is a known fact and even the fleet managers advised [another woman driver] to interview co-drivers as a potential romantic interest as platonic relationship teams do not work."

Employer take-away: Allegations of this sort don’t often arise in a vacuum. From the court’s opinion, it is clear that there are larger issues at play at CRST. We also know that OTR trucking is a bit of a different industry than most. On the other hand, common sense dictates that one should provide separate accommodations for travelling employees of the opposite sex.

Upcoming Events

3/5/15

Day on the Hill

WI SHRM - Madison


3/19/15

Gubernatorial Election Fall-Out

SHRM - Sheboygan County


3/27/15

HR Audit

Small Business Development Center - UW-Milwaukee


4/14/15

Mediation & Conflict Resolution

Carroll University


4/16/15

Legislative & Legal Update

SKRA - Racine, WI


4/24/15

Handbooks (Policies)

Small Business Development Center - UW-Milwaukee


5/29/15

Behavioral Issues

Small Business Development Center - UW-Milwaukee


6/16/15

HR for Lawyers

BSL Webinar


9/8/15

Legislative & Legal Update

Racine Workforce Development Center - Sturtevant, WI


For more information on upcoming events, click here.