First Quarter 2017

 

Home

In This Issue:

A New Year and a New Administration

Quick Hits

State Cases and Laws Under Review That May Affect Your Business

Legislative Update

An Uncertain Future for FLSA Changes and the Affordable Care Act

Law Firm's Violation of WARN Act Has Steep Consequences

Marijuana Use and Your Workplace

Regulatory Update

Electronic Submission of OSHA Reporting Now Required

Independent Contractors or Employees? Incorrect Classification Can Carry Substantial Penalties

Religious Accommodations Violated by Zero-Tolerance Policy

Workplace Trends

Improving Workplace Productivity and Culture

Don't Lose Good Employees Because of Bad Managers

Survey Question

Disciplinary Action

Links of Note

We Trust You

Is Your Company a Gryffindor or a Slytherin?

Millennials in the Workplace — A Fresh Take

The Strangest Things We've Heard of Late

Gone Fishin' — NOT!

O Captain! My Captain!

Keep Your Eyes on the Road and Your Hands Upon the Wheel

Published or Quoted Elsewhere:

Should I Stay or Should I Go?

TEC Blog - Latest News

Purple Haze: Marijuana's Unclear Place at Work (Part 1)

Montage: Online Video Interviewing Blog

Purple Haze: How Will You Approach Marijuana Use Post-Hire? (Part II)

Montage: Online Video Interviewing Blog

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

A New Year and a New Administration

We hope you enjoyed the holidays and that your 2017 is off to a good start.

The change in presidential administration will likely affect a variety of laws and regulations, including those governing the workplace (e.g., PPACA, FLSA), as well as U.S. Supreme Court dynamics. Many analysts cite President Trump’s remarks on the campaign trail regarding over-regulation as an indication of what’s to come.

Needless to say, there are many moving pieces here. Stay tuned for updates.

Quick Hits

State Cases and Laws Under Review That May Affect Your Business

The Wisconsin Supreme Court has agreed to review the Manitowoc Company, Inc. v. Lanning case which bears on non-solicitation agreements. In August 17, 2016, the Wisconsin Court of Appeals held that Manitowoc Company's non-solicitation agreement was overbroad and unenforceable. This has implications for your non-solicitation agreements — and potentially non-compete and confidentiality agreements as well. A decision is expected by June 2018.

The United States Supreme Court has agreed to review the case of Epic v. Lewis which originally arose from a class action lawsuit over employee classifications under the FLSA. Now it is focused on the legality of requiring employees to resolve wage disputes via arbitration. A decision is expected by June 2018.

The United States District Court for the Western District of Wisconsin recently ruled part of Wisconsin's right-to-work law unconstitutional (Int'l Assoc. of Machinists v. Allen, 16-cv-77). Right-to-work laws prevent unions from requiring employees to join the union as a condition of employment. The Wisconsin law was enacted in March 2015. According to Judge William M. Conley, the law violates the Labor Management Relations Act ("LMRA") relative to the amount of notice an employee must give before revoking her dues checkoff.

Business Takeaway: The Int’l Assoc. of Machinists lawsuit presented a broader attack on the right-to-work law. While the court’s ruling does not negate the law in its entirety, it does raise questions about mechanics and enforceability. We will know in the next few weeks whether either party appeals.

Legislative Update

An Uncertain Future for FLSA Changes and the Affordable Care Act

In December 2016, the United States District Court for the Eastern District of Wisconsin issued an injunction on revisions to the Fair Labor Standards Act ("FLSA") overtime rule (initially set to take effect December 1, 2016). With a new administration in place, there are many possibilities (e.g., withdrawal of the revised rules by the new Labor Secretary, a final ruling in the pending Texas case, a legislative compromise).

The Patient Protection and Affordable Care Act ("PPACA") also faces an uncertain future. President Trump and Congress have vowed its repeal as their first order of business. On Inauguration Day, President Trump signed, as one of his first orders, a directive granting waivers, exemptions, and delays of various PPACA revisions. Of course, it will take more to unwind the PPACA in its entirety. If the PPACA continues in effect, the IRS deadlines for 1095 forms have been extended to March 2, 2017.

Law Firm's Violation of WARN Act Has Steep Consequences

The Worker Adjustment and Retraining Notification ("WARN") Act requires organizations to provide employees 60 days' notice of plant closings or mass layoffs. A large Florida law firm was ruled to have violated the WARN Act when the firm notified its employees the same day it closed its doors. Additionally, the firm failed to pay employees for their last three weeks of work. The firm owes employees up to $21 million, and the managing partner has relinquished his law license.

Business Takeaway: Signs of less regulation do not negate longstanding legal requirements. Consequences are significant.

Marijuana Use and Your Workplace

The Wisconsin Legislature is currently considering two bills relative to marijuana use. While there is continued debate underway in Wisconsin about cannabidiol (CBD) oil use, medical use, and recreational use, several states voted last November to legalize various types of marijuana use (with the ballot measure failing in just one state). In a two-part, guest submission to Montage, we recently addressed pre-hire and post-hire concerns relating to marijuana use.

Business Takeaway: With Wisconsin legislation under consideration, and more states legalizing marijuana use, you may want to start considering how to address marijuana use by your employees.

Regulatory Update

Electronic Submission of OSHA Reporting Now Required

Effective January 1, 2017, employers are required to electronically submit injury and illness data to the Occupational Safety and Health Administration ("OSHA"). The rule also requires employers to inform employees of their right to report injuries (and prohibits employers from discouraging reporting). This does not otherwise alter an employer's responsibility with respect to completion, retention, and certification of injury and illness records. OSHA plans to use the data for enforcement and compliance purposes and post certain data to its website (without including any personally identifiable information).

Business Takeaway: All establishments with 250 or more employees (in industries covered by the recordkeeping regulation) must electronically submit injury and illness information from form 300A to OSHA by July 1, 2017, and from forms 300 and 301 by July 1, 2018. Establishments with 20–249 employees (in industries with historically high rates of injury and illness) must electronically submit form 300A to OSHA by July 1, 2017. While electronic submission might add an extra step to this process, the new rule should not otherwise affect your recordkeeping practices. Now is the time to address any inconsistencies or issues in injury and illness recordkeeping. Contact Julia at 414-446-8800 or julia@goldsteinsc.com with questions on OSHA compliance.

Independent Contractors or Employees? Incorrect Classification Can Carry Substantial Penalties

Following the finding by the National Labor Relations Board (NLRB) that Menards violated federal law relative to arbitration agreements, Menards now faces NLRB accusations based on the classification of its delivery drivers. The NLRB alleges that Menards is misclassifying delivery drivers as independent contractors rather than employees.

Business Takeaway: While the results of this particular matter are yet to be determined, it serves as yet another reminder to correctly identify and classify your workforce. As we have discussed previously, misclassifying employees as independent contractors can carry substantial penalties and, in some instances, upend your entire business model. Contact Adam at 414-446-8800 or adam@goldsteinsc.com with questions on employee classification.

Religious Accommodations Violated by Zero-Tolerance Policy

In a recent Equal Employment Opportunity Commission (“EEOC”) lawsuit, several employees of St. Vincent Health Center of Pennsylvania alleged that the hospital violated Title VII of the Civil Rights Act (relative to religious accommodation) after they were terminated for refusing to comply with the health center’s mandatory flu vaccination program. In settling this matter, St. Vincent agreed that it will not require proof of “an employee’s or applicant’s religious objection,” and will implement precautions for those who do not receive the vaccination. St. Vincent also agreed to re-employ the six employees and pay them a total of $300,000.

Business Takeaway: This EEOC finding serves as a reminder to be careful with zero-tolerance policies, even in the world of health and safety. Contact Adam at 414-446-8800 or adam@goldsteinsc.com with questions about company policies and workplace accommodations.

Workplace Trends

Improving Workplace Productivity and Culture

What makes a workplace productive? In his new book Payoff: The Hidden Logic That Shapes Our Motivation, Dan Ariely studies this issue, focusing on how the typical business tries to keep the workforce engaged and productive. He suggests many businesses focus on the wrong motivations — including bonuses or other tangible rewards — rather than intrinsic motivation and purposeful work.

Various recent studies point to productivity issues related to office noise and layout — particularly distractions and noises caused by coworkers. As we continue navigating through cold and flu season (from the disruption of coughing and sneezing to missed work), consider how your office layout and other factors may affect productivity. Exit interviews provide opportunities to gain insight into these issues. Of course, if you discover this information solely from exit interviews, attempts to address underlying concerns may be too little, too late.

Business Takeaway: If you are struggling with disengaged personnel (especially during these last months of winter), think beyond traditional fixes to your culture, individual employee motivation, and team-building activities. Contact Adam at 414-446-8800 or adam@goldsteinsc.com with questions on workforce concerns.

Don't Lose Good Employees Because of Bad Managers

In a December 2016 guest submission to The Executive Committee ("TEC"), we discussed job engagement and employee retention. Gallup studies over the past few years suggest a strong relationship between an employee's disengagement and that employee's direct supervisor. A recent study shows half of all employees surveyed left a job just to escape a manager.

Business Takeaway: Think about your teams or departments that have high turnover, and consider the procedures you use to identify future supervisors and managers. How confident are you in your ability to consistently identify new leaders and managers?

Survey Question

We have heard considerable talk lately about the 10-hour/day, four-day workweek.

  • Do you have such a schedule? If so, what are the pros and cons?
  • If not, have you considered such a schedule? Why or why not?

Please email Adam with your response. Results will be shared anonymously in the next issue.

Disciplinary Action

Despite the mantra "hire slow, fire fast," many business leaders feel uneasy when it comes to employee termination — and for good reason. While the decision itself can be difficult, both personally and professionally, many also fear inviting a lawsuit. The situation gets even more complicated when the employee is on medical leave, just back from leave, or headed out on leave. Consider the following:

  1. Do you have documentation of the employee’s performance issues? This includes past write-ups or disciplinary action.
  2. Do you have documentation of meetings, conversations, or other communications relative to the employee’s performance — with or about the employee?
  3. If the employee is on leave, was it something discovered while on leave, and only because the employee was on leave?

Accurate documentation and a timeline of events go a long way toward demonstrating that the reasons for the termination decision were independent of the leave, or the medical reasons for the leave.

Links of Note

We Trust You

In a short video on innovation, motivation, and productivity, Charlie Duhigg discusses the transition of an underperforming and toxic General Motors factory into a successful Toyota factory — with the same employees. What does employee empowerment look like in your business?

Is Your Company a Gryffindor or a Slytherin?

The Harry Potter novels include four school houses, each with recognizable characteristics (e.g., ambition, loyalty, creativity, bravery). This fun infographic places real companies into the most appropriate house, offering some insight into each company's culture. Where would you place your business in the Harry Potter world?

Millennials in the Workplace — A Fresh Take

We know that a lot has been said and written about millennials. Simon Sinek, the author of Start with Why and one of the most popular TED talks, weighs in on the subject of millennials in the workplace. His video, focusing on four key elements, has garnered five million views in just three months.

The Strangest Things We've Heard of Late

Gone Fishin' — NOT!

A video of a man trying to call in sick to work (citing his desire to go fishing on a nice day) has gone viral. One point of note: he does not actually work at the company he is calling. While the video is entertaining, there are a few notable takeaways. The fact that the manager on the other end of the call does not recognize that the caller doesn't work there is a bit strange — but perhaps understandable considering the size of the department and the fact that he says that he's only worked there one week. That said, the manager handled the phone call surprisingly well in other ways, particularly by citing company policy and relaying legitimate boundaries.

O Captain! My Captain!

Wes Morgan, captain of Leicester City Football Club, a soccer team in the English Premier League, finalized what he considers the best contract he has ever signed. The endorsement deal with rum producer Captain Morgan entitles Mr. Morgan to "enter licensed premises and purchase a Captain & Cola beverage for each patron in attendance," provided he "turn to face the patrons, extend his arms to form the shape of a 'Y' and shout, 'There's only one Captain Morgan!'"

Business Takeaway: Who are your "captains," and how are they serving as brand ambassadors?

Keep Your Eyes on the Road and Your Hands Upon the Wheel

Unless of course you have a football legend in your back seat. Washington cab driver and Steelers fan Sam Snow got the surprise of his life when he discovered that his all-time favorite quarterback John Elway was his fare on Inauguration Day. When Elway's group got into the car, the driver just started driving. When asked the seemingly innocuous question of who his favorite quarterback was, he answered, figuring it was the usual cab ride small talk. The group had plenty of fun with the cab driver, and he got a photo-op out of it. Touchdown, Sam Snow!

Business Takeaway: How aware are your employees of their surroundings? And what kind of surprises would bring them joy?

Upcoming Events

2/7/17

FLSA Update

MMAC

2/8/17

Changing Nature of Work and the Workplace

Women's Focus


For more information on upcoming events, click here.