Second Quarter 2014



In This Issue:

Firm News

Legislative and Regulatory Update

Form Follows Function

Smoke Gets in Your Eyes

Dressing Down: Workplace Dress Policies

Legal Update

It's a Matter of Policy

Quick Notes

The Strangest Thing We’ve Heard of Late

Upcoming Events

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 - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

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

Previous Issues

Firm News

We would like to introduce the newest member of our staff: Attorney Sean McNulty. A graduate of the University of Wisconsin Law School, Sean received a B.A. in Political Science from Marquette University. He has worked as a teaching assistant in the UW- Madison political science department, served as an intern with the Circuit Court of Cook County, and completed a stint as a congressional intern. Welcome Sean!

Legislative and Regulatory Update

Form Follows Function

The EEOC recently spoke out against a state agency’s ADA policy which, according to the EEOC, contains numerous illegal provisions. Employers are quick to pass around a variety of forms these days regarding, for example, social media, confidentiality, and leave. The EEOC’s announcement is a reminder that the ubiquity of such forms is no guarantee that they are lawful or enforceable.

Employer take-away: It is a good idea to verify the legality of the forms you are using. Contact Kris at or at 414-446-8800 if you have questions about, or would like a complimentary review of, your policies.

Smoke Gets in Your Eyes

E-cigarettes are increasingly in the news. While e-cigarettes are tobacco-free, they deliver nicotine and emit a smoke-like vapor when the smoker exhales. Because existing state and federal laws were enacted before the invention of e-cigarettes, few laws ban (or even address) them. At the same time, e-cigarettes require that decisions be made relative to existing company smoking policies. For example, can employees smoke e-cigarettes at their work stations, or only in designated smoking areas? And how do you know whether a smoker is smoking an e-cigarette or a traditional cigarette?

Have you confronted the issue, and if so, how? Send your comments to Kris at Anonymized results will be shared in a subsequent issue.

Dressing Down: Workplace Dress Policies

If it’s spring, it must be time to talk about workplace dress policies. While this discussion usually revolves around tattoos, piercings, and open-toed shoes, recent developments raise a host of other potential issues. The U.S. Army, for example, recently imposed limitations on sideburns and cosmetics, among other things. And the EEOC issued an FAQ guide on the topic of religious garb and grooming.

Employer take-away: Employee dress code policies continue to be a very sticky subject. On the one hand, employees appreciate the freedom to dress casually – especially in the summer. On the other hand, guidelines are necessary – even if they are difficult to articulate (e.g. open-toed shoes but not flip flops; straps but not spaghetti straps; jeans but no rips or cuts – even by design). Contact Kris at or 414-446-8800 if you have questions about your current policy or would like to explore implementing one.

Legal Update

It's a Matter of Policy

Ladies and gentlemen, time to check your handbooks. The National Labor Relations Board has been very active lately. It has ruled against a number and variety of prominent employers on issues of confidentiality, social media, and personal conduct policies that it has determined to be overbroad and, as such, illegal.

As a reminder, the National Labor Relations Act applies, generally speaking, to all "concerted activity" (i.e., conversations) among employees regarding terms and conditions of employment (i.e., wages, hours, benefits, etc.). The common misperception is that the act applies only where labor unions are involved.

The NLRB, charged with enforcing the NLRA, has a full complement of members (5) for the first time in several years. Among the policies targeted are those that prohibit speech that "might damage the reputation" of the company or prohibit negative comments about fellow team members. See: Hills & Dales and First Transit.

Employer take-away: What's in your handbook? Contact Kris at or 414-446-8800 if you have any questions about your current handbook language.

Quick Notes

  • For the Circular File. Corporate Records Service is sending forms to Wisconsin small business owners purporting that business owners are required to file "corporate consent records" with an associated $125.00 fee. There is no such filing requirement. The company paid a $340,000 fine for mailing out a similar solicitation to almost 73,000 Wisconsin small business owners just last year.
  • The use of biometrics (such as retinal scans) is increasingly common in the workplace, but the propriety of this practice is far from settled. On the one hand, biometric technology is simpler, cheaper, and more common than in years past. It also provides an added level of security for sensitive areas and data. On the other, there are the usual employee privacy concerns…and the Book of Revelations?
  • In the past few weeks, at least two high-profile CEOs have landed on the front page relative to their "political" views.

    On April 3, 2014, Brendan Eich, CEO of Mozilla/Firefox, was forced to step down when there were threats of a boycott against the company and its search engine because of his views on gay marriage. Eich was a founder of the company but appointed CEO just a few weeks prior. He had long been a strong and vocal opponent of gay marriage.

    In late April, Los Angeles Clippers CEO Donald Sterling was suspended by the NBA for life with the promise that his team will soon be sold. This came as a result of racist remarks made by Sterling that were captured on audiotape by Sterling’s mistress and released to the TMZ network.

  • Employer take-away: Whatever one’s political views, the power of the media (and a surreptitious recording and an angry mistress) is undeniable. This is not news. What is news is how quickly and dramatically such circumstances play themselves out in this age of pen-size recorders, the Internet, and public pressure to take action.

The Strangest Things We’ve Heard of Late

An employee of Oak Forest Hospital was interviewing a massage therapist for a job at the hospital. Ultimately, the hospital employee suggested a trade – a job in exchange for an erotic massage. The therapist reported the overture to police, and the hospital employee was criminally charged. The legal question in this case is whether the therapist has a claim against the hospital (and, as the hospital is part of the Cook County Bureau of Health Services, Cook County itself).

In this case, the 7th Circuit answered "no." While Title VII protects individuals even where there is no employer-employee relationship (e.g., job applicants), in this case there was no real or potential adverse action against the therapist because the job, well, never existed. In fact, the hospital employee had no hire/fire authority, nor did he play a formal role in interviewing potential employees. The hospital employee was a political appointee with a long history of sexual harassment and related misdeeds. (In fact, he had been terminated by the Cook County Adult Probation Department for similar conduct). See Wilson v. Cook County, 7th Cir (2/20/14)

Upcoming Events

Interested in building your customer base? Join us on June 4 for a very special opportunity to hear Action Coach Founder Brad Sugars. We are pleased to offer this complimentary seminar to friends of Goldstein Law Group, S.C. Please contact Kris at for registration information.

Join Attorney Goldstein and Terry Frett at Jannsen & Co. on June 3 for a complimentary ACA breakfast briefing. There have been several significant ACA developments in recent weeks and months, some of which create important obligations, and provide opportunities, for business owners and HR directors.

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

Upcoming Events


ACA Breakfast Briefing

Jannsen & Company

Pewaukee, WI


"Legal Update"

Racine Workforce Development Center

For more information on upcoming events, click here.