First Quarter 2016

 

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In This Issue:

Firm News

Legal Update

We’ve Got Overtime

Delay of Game Penalty

Time Out

A First Down for Flambeau, Inc.

Not Team Players

Under Review

In the News

Unsportsmanlike Conduct

The Rules of the Game

Links of Note

Huddle Up

Coaching with Candor

The Incognito/Harvin Rule

Coaching 'Em Up

Strangest Thing

Bad Trade

The Players’ Perspective

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

With the new year comes a new feature to our newsletter. It seems that just about every day we come across informative and useful articles, tools, and other resources. Our new Links of Note section is an effort to share the "best of the best" with you. Enjoy! And enjoy the big game this weekend.

Legal Update

Fair Labor Standards Act

We’ve Got Overtime

Still no word on a precise date for the FLSA white collar exemption changes, though they are expected this spring or summer. Following the announcement, there may be only a short window before the effective date of the rule changes. The presidential election could also affect the timing of the release and/or effective dates. This means that, if you haven’t already done so, now is the time to revisit your white collar exemptions – considering both current law and anticipated changes. Also realize that if the final rules contain additional revisions to those already proposed, the short window between announcement and effective date could pose a challenge.

Business take-away: These overtime rules are complicated — even the most sophisticated business owners have made costly mistakes. Consider the following steps to prepare for the changes and to address any existing concerns:

  • Audit your exempt v. non-exempt classifications. Are your classifications accurate, and how much will they change under the anticipated new law (i.e., will they change from exempt to non-exempt should salary limits change from $455/week, or $23,660/yr. to $970/week, or $50,440/yr.)?
  • Educate managers about how to discuss the issue as anticipated with employees, as employees will become increasingly aware of the possibility that they qualify for overtime (1½ times their pay for all hours over 40 per workweek) – both going forward and looking backward.
  • Ask managers to report concerns they are hearing from employees.
  • Plan for which, and how many, employees will shift from exempt to non-exempt under the new rules, and how to manage this transition.
  • Contact Adam at 414-446-8800 or adam@goldsteinsc.com should you wish to schedule a consultation regarding how best to prepare for the revised white collar exemptions.

Affordable Care Act

Delay of Game Penalty

In December, the IRS extended the due dates for reporting requirements, both for furnishing documentation to individuals and for filing forms with the IRS. This includes IRS forms 1094-C (Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns), which must now be submitted to the IRS by March 31, 2016; and 1095-C (Employer-Provided Health Insurance Offer and Coverage), which must now be submitted to employees by May 31, 2016, or June 30, 2016 (if filing electronically). Note that the penalties for failure to file correct, complete statements on time are $260 per form, capped at $3 million per year.

Cadillac Tax

Time Out

On December 18, 2015, President Obama signed the Consolidated Appropriations Act of 2016, which includes a two-year delay (from 2018 to 2020) of the ACA’s 40% excise tax (the "Cadillac Tax") on high-value, employer-sponsored health care benefits. The tax applies to any plan that offers benefits valued above $10,200 for single coverage or $27,500 for family coverage.

Business take-away: While the ACA extensions may prove beneficial to employers, the revised reporting deadlines are just around the corner and require attention. Accordingly, we have been working with a number of clients, their accountants, and payroll services in this regard. Contact Adam at 414-446-8800 or adam@goldsteinsc.com should you have any questions about these reporting requirements.

Wellness Programs & Health Screenings

A First Down for Flambeau, Inc.

On December 31, 2015, a Wisconsin District Court ruled in favor of Flambeau, Inc., and against the EEOC, with respect to the company’s requirement that employees undergo health screenings as a condition of receiving employer-sponsored health insurance coverage. Flambeau, Inc. requires employees to participate in their wellness program, which includes certain screenings and assessments, for health insurance coverage eligibility. The company uses this information to calculate projected insurance costs for the benefit year. The district court judge ruled in favor of Flambeau, Inc., stating the company’s actions fall under the ADA's safe harbor provision.

Business take-away: A growing number of companies offer incentives for employees to participate in screening and wellness programs, or impose penalties for non-participation, both of which are allowed under the Affordable Care Act within certain parameters. This ruling offers guidance on alternatives that are available to business owners to combat rising health care costs, and how and why those alternatives might draw the attention of government regulators or the courts.

Fair Credit Reporting Act

Not Team Players

There seems to have been an uptick in phony job applicants (those not actually seeking employment where they apply). The actual intent of these people, who are applying to jobs and signing background check authorizations, is to join a potential class action claim against a company should its background check disclosure not comply with technical FCRA requirements.

Business take-away: Ensure your background check disclosure is a stand-alone document and not grouped in with a general application form or extraneous statements. Additionally, do not assume that your background check disclosure forms are acceptable simply because they are provided by a background screening company as recent claims involve forms created by such companies. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for a complimentary review of the forms you are currently using or for assistance in drafting such forms.

Wrongful Termination?

Under Review

A case currently pending before the Federal District Court in Green Bay, Wisconsin pits the EEOC against Wisconsin Plastics, Inc. The EEOC argues that the company violated Title VII by marking 22 employees down on their evaluations for their English skills (and ultimately terminating them). The EEOC argues that English skills were not essential to their job duties. The company contends that “English language proficiency” does not equal race or national origin determination and, accordingly, is not the basis for a Title VII action. Stay tuned.

In the News

Unsportsmanlike Conduct

A recent national investigative report featured several cases of Wisconsin nursing home workers sharing photos and videos of residents via social media. The Wisconsin cases, for example, involved a video of resident abuse as well as compromising and demeaning photos of nude residents. Many nursing homes in the national study already had social media and cellphone policies in place which resulted in the employees’ terminations – though the damage to the nursing home, its residents, and their families was already done.

Business take-away: These are just a handful of many instances in which the use of social media in the workplace triggered a larger problem, including breaches of confidentiality and HIPAA violations. Having a social media policy in place is one thing, but (1) it must be clear about the company’s position on the use of social media, texting, cellphones, etc.; and (2) it must be consistently enforced. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for assistance in drafting a social media policy or for a complimentary review of your existing social media policy.

The Rules of the Game

On January 29, 2016, President Obama announced a new requirement that companies report employee pay by race, gender, and ethnicity. The goal of this reporting is to eliminate pay discrimination, which has been on the President’s agenda since his first official act – signing the Lilly Ledbetter Act. Although private enterprise may bristle at the idea of additional reporting and oversight, the evidence of disparate pay is compelling. Recently, Salesforce.com CEO Marc Benioff indicated that his team identified a pay gap at the company. Women were being paid in aggregate $3 million less than their male counterparts. He was stunned. While most of us support the idea of meritocracy, recent studies suggest that the practice of it may be neither fair nor effective and, in some instances, may be an illusion.

Business take-away: The finalized rules are projected for a September 2016 release, with initial reports due in September 2017. Accordingly, now would be a great time for an informal, internal audit of employee compensation. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for assistance.

Links of Note

Huddle Up

Brothers Bert and John Jacobs, who co-founded the “Life is Good” clothing company, attribute their success to one simple exercise: highlighting the good parts of every day.

"… John says he and his brother now ask their employees the same thing when they all come together — 'Tell me something good' — and the results have been positive. It leads to ideas, which lead to progress, which leads to building on successes, instead of dwelling on challenges…."

Coaching with Candor

Supervisors and coworkers can struggle in giving clear, concise feedback to employees. Kim Scott offers radical candor as a management tool.

"Radical candor is humble, it’s helpful, it’s immediate, it’s in person — in private if it’s criticism and in public if it’s praise — and it doesn’t personalize."

The Incognito/Harvin Rule

Researchers at Harvard Business School investigated toxic workers in the workplace, writing an in-depth paper on the impact of these employees. For an overview of the paper, see the interview with one of the researchers or the Harvard Business Review article.

Coaching 'Em Up

Inspire Wisconsin was developed to connect students interested in various career paths with professionals in those fields. For students, it offers a “new age” mechanism for career guidance. For professionals, it offers the opportunity to build your own talent pipeline. Please consider creating a company page or serving as a career coach. We have.

The Strangest Things We’ve Heard of Late

Bad Trade

When Texas plumber Mark Oberholtzer sold his truck, he thought little of the fact that his Mark-1 Plumbing logo was still on the side. Oberholtzer certainly did not expect it to be resold to Islamist militants in Syria, where the vehicle was filmed and later broadcast throughout the world as part of a terrorist attack. Oberholtzer recently filed a lawsuit seeking $1 million in damages for harm done to his company’s reputation and personal threats received as a result of his perceived support of terrorism.

The Players’ Perspective

Star Wars’ Kylo Ren goes undercover as a radar technician to learn from his employees and empathize with their various travails under his command.

Upcoming Events

3/3/16

Legal & Legislative Update

Workforce Development Center


3/16/16

Legal & Legislative Update

Workforce Development Center

3/17/16

Legal & Legislative Update

SRKA (SHRM Racine/Kenosha Chapter)


For more information on upcoming events, click here.