Second Quarter 2015



In This Issue:

Firm News

Since We Last Spoke

Right to Work

White Collar Exemptions

Pregnancy Discrimination Still in the News

Legislative Update

HR 1147, the Legal Workforce Act

Senate Bill 69

Regulatory Update

"Quickie" or "Ambush" Election Rules

General Counsel Memorandum GC 15-04

Wage and Hour Issues

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 - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

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

Previous Issues

Firm News

Attorney Mark Goldstein was recently rated AV by Martindale-Hubbell Peer Review Ratings. This is the highest rating possible, and a tribute to Mark’s 20+ years in practice and the respect he has among fellow attorneys, judges, and others.

Since We Last Spoke

Right to Work

Right to Work became the law of the State of Wisconsin on March 11. This new law means that an employee may opt out of union membership and dues. Note that, for collective bargaining agreements in existence as of March 11, the new law takes effect upon the expiration of the current agreement ("fair share" rules still apply in the interim). Note also that there is a pending court challenge to the new law, filed by unions just days after the new law was signed. The lawsuit seeks an injunction on its implementation. Stay tuned.

Employer Take-Away: We have received a number of questions about what this new law means for current contracts, employee benefits, etc. Feel free to contact us should you have any questions.

White Collar Exemptions

The Department of Labor has yet to announce changes to the Fair Labor Standards Act White Collar Exemptions. The current thinking is that these changes will be announced in May and become effective in September.

Employer Take-Away: Use this short respite to your advantage. Undertake an audit of your current classifications, and put an administrative and communication plan in place with respect to the anticipated changes. Contact us should you wish to discuss further.

Pregnancy Discrimination Still in the News

When we went to press with the last Legal Alert, the case of Young vs. UPS was before the Supreme Court. The Supreme Court has since remanded the case back to a lower court – effectively providing Ms. Young an opportunity to demonstrate in court that she was, in fact, discriminated against.

Employer Take-Away: The Court, somewhat surprisingly, rejected both the analytical approaches proposed by Ms. Young and Defendant UPS – fashioning its own, new approach to such cases. Suffice it to say, the Young litigation has highlighted the fact that pregnancy discrimination is not only about discrimination, per se. In certain circumstances, it may also be about whether reasonable accommodations were offered.

Legislative Update

HR 1147, the Legal Workforce Act, was recently proposed in the U.S. House of Representatives. The bill would require U.S. employers to use E-Verify, but it also eliminates the I-9 requirement. The law would also create a "safe harbor" for those employers who follow the new law – relative to any errors later discovered with respect to a new hire.

Employer take-away: We have predicted E-Verify being made mandatory for some time now. The opportunity to be free of the I-9 requirement would be good news for employers.

The Wisconsin Legislature is considering a bill, Senate Bill 69, that would significantly alter restrictive covenants (a.k.a. non-compete agreements). Under current law, a covenant not to compete is unenforceable if any one provision is determined to place an unreasonable restraint on the employee (the 2009 Star Direct decision softened this a bit).

Under the proposal, the most restrictive language of the existing law would not apply to confidentiality or non-solicitation agreements (agreements that the departing employee may not solicit other employees to leave with him/her). Further, if the language were deemed too restrictive, a court could modify the language (as opposed to ruling that it is overbroad and unenforceable). Stay tuned.

Employer Take-Away: Together with the anticipated Supreme Court ruling in the Runzheimer case, now is a perfect time to revisit your existing non-compete agreements and put a plan in place relative to these potential changes. Contact us should you wish to discuss further.

Two Wisconsin state lawmakers have proposed waiving the One Day Rest in Seven rule for factory and mercantile workers. Wisconsin Assembly Bill 118 would allow employees to voluntary waive the one day rest requirement. A similar bill was proposed in 2014 but did not pass.

Employer Take-away: Note that the One Day Rest in Seven rule, and the new rule (if passed), only apply to factory and mercantile employees.

Regulatory Update

On April 14, the National Labor Relations Board’s new "Quickie" or "Ambush" Election Rules took effect. These representation-case procedures are intended to speed up the election process, and push most issues previously debated pre-election until after voting. Among other changes, this ruling:

  • Eliminates the 25-day period that had been required between the time an election is ordered and when it is held
  • Requires employers to share employee contact information with the prospective union immediately, and electronically.

Ultimately, representation elections may be held as soon as 11 days after being ordered.

Employer take-away: Employers must be more vigilant than ever with respect to signs of union organizing. By the time notice is received, employers will be already very much "behind the eight ball." Contact us should you have any questions about what to look for.

The NLRB recently issued guidance for employers in the drafting and implementation of handbooks, rules and related policies. General Counsel Memorandum GC 15-04 identifies language and policies that are likely to be found to interfere with employees’ Section 7 rights under the National Labor Relations Act (“the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”) The report includes examples of lawful and unlawful language on topics including:

  • Confidentiality
  • Professionalism
  • Anti-harassment
  • Trademark
  • Photography/recording
  • Media contact rules

Employer take-away: This memorandum is another example of the NLRB’s asserting itself with respect to work rules (previous memos were on the subject of social media policies). Note that the National Labor Relations Act applies to all workplaces, not only those where unions are present. And, as set forth above, it applies to any activity in which two or more employees are discussing wages, benefits, or other terms or conditions of employment (not just union activity).

Wage and Hour Issues

The U.S. Department of Labor has brought suit against four Fox Valley El Azteca restaurants to recover back pay and other damages on behalf of more than 100 restaurant employees. According to the suit, the restaurants failed to pay kitchen workers and wait staff minimum wage or overtime, such that some employees were earning less than $1/hr.

A Scottsdale, Arizona resort paid more than $76,000 in back wages and penalties as a result of a U.S. Department of Labor Wage and Hour Division investigation. Among the violations: failure to pay overtime wages to hourly workers who worked more than 40 hours per week.

The City of Cleveland will pay $2.2 million to settle a class action lawsuit brought by thousands of city workers. The employees accused the city of improperly rounding down when calculating time clocked on the job.

Employer Take-Away: As repeatedly cautioned in this space, these lawsuits are increasingly prevalent. As evidenced by these three examples, the defendants come in all shapes and sizes (big, small, sophisticated, and even governmental). Remember that, in addition to the publicity, the penalties in these cases include double damages, actual attorneys fees, and personal liability.

The Strangest Things We’ve Heard of Late

It’s April, and that means playoff time for both the NBA and NHL. With the playoffs comes all the talk about team strength, chemistry, and, of course, the "intangibles." One team in the NHL playoffs is the Minnesota Wild, and one player on that team, Defenseman Jordan Leopold, has a rather unique story. Mr. Leopold, a 12-year veteran, was traded by the Columbus Blue Jackets to the Wild just 20 minutes before the trade deadline. One impetus for the trade was a letter to the Wild written by Leopold’s daughter.

Employer take-away: More and more, our clients and colleagues are reporting that their very best hires come from word of mouth or other unconventional means. This serves as a great reminder of all the non-traditional ways one can put the word out regarding open positions at your company. Do your employees, colleagues, and friends know what you are looking for, and have a sense of who might be a good fit for your company? What skills and traits do your very best performers exhibit? Do you offer employee incentives for successful referrals?

Upcoming Events


Handbooks (Policies)

Small Business Development Center - UW-Milwaukee


Behavioral Issues

Small Business Development Center - UW-Milwaukee


HR for Lawyers

BSL Webinar


Legislative & Legal Update

Racine Workforce Development Center - Sturtevant, WI

For more information on upcoming events, click here.