Second Quarter 2012



In This Issue:

Firm News

In the News

Trading places - the benefits of a system of swapping job assignments.

System failure. Most bosses fail at performance reviews.

He said. He said.

Facebook and workplace privacy.

The National Labor Relations Board weighs in on social media policies.

Legislative &
Regulatory Update

NLRA Rights Poster – Deadline April 30, 2012.

An “opportunity” for summer help.

Wage & hour claims on the rise.

Job bias claims hit new high.

Litigation Update

Recent Verdicts and Settlements

The tipping point.

Between a rock and a hard place.

FLSA Violation – a rare win for employers.

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 - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

(Wisconsin Lawyer - Vol. 81,
No. 2, February 2008)

Previous Issues

Firm News

We recently celebrated our fourth anniversary, and Mark is rapidly approaching his 20th year in practice. 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 and growth. Thank you.

We’d also like to introduce two new members of our staff: Kris Franceschi and Betsy Uhler. Kris assists firm clients with handbooks, policy language and benefits issues. Kris brings over 15 years of HR experience to the position, most recently as a VP of HR with Robert W. Baird & Co. Betsy is our jack-of-all-trades and also the friendly voice you hear on the phone. Betsy brings over 20 years of law office experience to the firm.

In the News

Trading places – the benefits of a system of swapping job assignments. In today’s business environment, a nimble and flexible workforce is essential (and potentially a great advantage over the competition). Accordingly, some companies are providing employees cross-training and temporary assignments in different areas of the company or even different offices around the globe. Not only does this help develop communication across company departments, it also boosts morale and keeps jobs fresh and interesting.

Employer take-away: How much of a particular job is wrapped up in the individual performing that job? Is your workplace conducive to cross-training?

System failure. Most supervisors fail at performance reviews. A performance review should be an opportunity to honestly assess past performance and plan for future growth. Unfortunately, reviews are all too often rushed, poorly prepared, just plain unhelpful, or not given at all. A recent article in Forbes magazine outlines the ten biggest mistakes that supervisors make in performance reviews.

Employer take-away: Study after study shows that employees crave feedback, whether it be positive or negative and even above news of a raise or bonus.

He said. He said. In February, Ryan Braun became the first professional baseball player to successfully appeal a positive drug test. As the reigning MVP, and with the loss of Prince Fielder to Detroit, this is no doubt good news for Milwaukee Brewers fans. It is also food for thought for business owners. First, not every employee who tests positive for drug use is a Ryan Braun. Second, the arbitration ruling called into question MLB protocols that had seemingly been in place for some time (and a MLB employee who had been in his position, following said protocols, for several years).

A few considerations:

  • What testing protocols do you have in place, and are you living up to them? Many company drug testing policies include language regarding supervisory training, sample handling and referrals to an EAP program (and a second chance for those who exercise this option).
  • What procedure do you follow if it appears the protocol may have been breached?
  • How do you protect the privacy in the event of a positive result?

Facebook and workplace privacy. Numerous stories have surfaced in recent weeks regarding employers who require job applicants to provide Facebook log-ins and passwords as part of the interview process. Some employers contend that this is an effective way to evaluate applicants. (In fact, one study indicates that a Facebook profile is a strong predictor of job performance, and another indicates Facebeook beats the IQ test as an evaluation tool). Existing employees are also being asked to provide similar information.

The American Civil Liberties Union, Facebook and at least a few state legislatures believe this practice may violate individual privacy rights. Two U.S. senators have now asked the Department of Justice and EEOC to weigh in on the legality of the practice. Undoubtedly, we’ll be hearing a lot more about this issue in coming months. Watch this space for updates.

The National Labor Relations Board weighs in on social media policies. The National Labor Relations Board recently released a second report on “lawfulness of employers’ social media policies and rules.” The report calls into question social media policies that preclude a discussion of “wages or working conditions among employees.” In the past, the issue generally involved a balancing of, on the one hand, employee privacy rights; and, on the other (1) an employer’s desire to either foster or preclude social media activity by its employees; and (2) its ability to enforce said policy. The NLRB report opens up a new front on the subject, one not anticipated by many of the policies presently in place. In the same vein, a recent NLRB decision faults a company for its policy calling for the discharge of an employee for "divulging any company knowledge to any client."

Employer take-away: Feel free to call or e-mail for a complimentary review of your current policy or for policy language drafted in consideration of the various laws at play.

Legislative & Regulatory Update

NLRA Rights Poster – Deadline April 30, 2012. Beginning April 30, 2012 (less than two weeks away), employers must post a notice advising employees of their rights under the National Labor Relations Act. The law requires that the notice be posted in a spot where it will be easily seen and where other personnel and workplace notices are posted. In addition, if other notices are posted online, this notice must be posted online as well.

Employer take-away: This notice may be posted in the same place as other employee notices and is included in new editions of the poster published by various private companies. In the interim, you might use the free poster provided by the NLRB.

An “opportunity” for summer help. With summer fast approaching, we are frequently asked about the merits of crafting a temporary position as an internship or independent contractor. After all, in many circumstances both the company and individual are seeking something very short-term, and the individual may have even offered to work for free (for the work experience or simply to beef up their resume).

If the individual is under the age of 20 and plans on working for 90 days or less, consider the “opportunity wage.” At $5.90/hr. (and even lower $4.25/hr. under federal law), this option was long ignored because of the tight job market and other economic factors. With shifts in the economy, and the federal and state government cracking down on misclassification of employees as exempt, independent contractors or unpaid interns, it may now constitute an attractive alternative for all.

Federal and state information is available online.

Wage & hour claims on the rise. According to Federal Judicial Caseload Statistics, FLSA (Fair Labor Standards Act) claims have increased by more than 15% since 2010 and over 325% in the past decade. The FLSA and its Wisconsin equivalent govern minimum wage, overtime, exempt/non-exempt determinations, child labor and recordkeeping. This is a significant development for employers as, in addition to ordinary damages, employers can be socked with double damages, punitive damages, personal liability and even criminal liability.

Job bias claims hit new high. Nearly 100,000 charges of discrimination were filed with the Equal Employment Opportunity Commission during fiscal year 2011, the most in its 46-year history. According to the EEOC’s former General Counsel, “We're seeing a greater diversity among minority groups in America. We're seeing more workers from India, Pakistan and other countries that bring additional religious complexity to the work force."

Litigation Update

Recent Verdicts and Settlements

The tipping point. Two recent court cases may give tipped employees an edge in arguments over wages.

  • The Supreme Court refuses to hear restaurateur’s appeal. The servers and bartenders of Applebee’s International will be allowed to sue for more pay as a result of the high court’s refusal to hear Applebee’s request to dismiss their complaint. More than 5,500 Applebee’s tipped employees brought suit against the restaurant chain, claiming that the tasks required to open and close as well as clean and stock the restaurant consumed a significant portion of their work time. As a result, they claim that Applebee’s has misclassified them as tipped employees and that, in actuality, they must be paid minimum wage.

    Employer take-away: Tipped employees are paid a sub-minimum wage with the expectation that the tips bring their hourly pay up to minimum wage. The law requires that if 20% or more of a worker’s time is spent doing general maintenance and prep work, the employer may not factor in this tip credit.

  • Mario Batali settles with workers for $5.25 million. Celebrity chef and restaurateur Mario Batali has agreed to settle a class-action lawsuit brought against him by servers at several of his restaurants. They claim that Batali cheated them of tips by deducting wine sales from the tip calculation.

Between a rock and a hard place. In a case of what not to do when accused of discrimination, a shipping company refused to accept a gay man’s application for a job opening because it was "in a boiling pot of water" due to a suit brought by three female employees alleging the company hired only gay men for station manager jobs. A senior manager was quoted as saying the company "needed to clean house" of homosexuals as a result of the lawsuit. The jury awarded the gay plaintiff over $1 million in damages plus attorney fees.

FLSA Violation – a rare win for employers. In the case of Kellar v. Summit Seating, Inc., an employee claimed she was entitled overtime pay for pre-shift activities (arriving in the wee morning hours to open up the office and prepare assignments for subordinates, among other things). The Seventh Circuit Court of Appeals ruled against the employee, finding that she failed to show that her supervisors knew of her overtime work. First, she never recorded any pre-shift time. Second, until the filing of her claim, she made no mention of her pre-shift work – either during weekly meetings or directly to her supervisors or the company owners. Finally, and perhaps most importantly, the company had a policy explicitly prohibiting overtime without prior written approval.

Employer take-away: What, if anything, does your handbook say about overtime work?

The Strangest Things We’ve Heard of Late

It's a bird. It's a plane. It's the Tacocopter! The latest in the line of examples of technology threatening an entire category of jobs is The Tacocopter. Still in the development stages, the Tacocopter is intended to deliver tacos direct to your door by private, unmanned helicopter. No word yet on how it navigates power lines and baseballs or whether it has built-in defenses against the “post-bar time” crowd.

We'd love to hear your feedback. Send comments to Mark J. Goldstein, S.C.

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.