Second Quarter 2016

 

Home

In This Issue:

FLSA Update

Play Ball!

In the News

Rosters In

On Deck

Players Strike

Extra Innings

Legal Update

The Play is Under Review

Seventh Inning Stretch

Legislative Update

Sabermetrics

Interleague/Minor League Play

There’s No Crying in Baseball

Links of Note

A Happy Clubhouse

Intentional Walk

The All-Star Game

Rookie Mistakes

Strangest Thing

I Don’t Care If I Never Get Back

No Joy in Mudville

Rush the Mound

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

FLSA Update

Play Ball!

Revisions to the FLSA white collar exemptions have been published. For information on how they may affect your business, read our FAQs from July 14th, June 7th and May 18th.

Business take-away: This is a big deal, with a potentially profound impact on your business. Make sure your employee classifications are in compliance with current state and federal laws, and consider which classifications must be revisited relative to the proposed changes. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for an outline of the proposed changes or to schedule a consultation regarding how best to prepare for them.

In the News

Rosters In

We continue to field questions about the mandatory PPACA tax form filings. These include IRS forms 1094-C (Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns), which must be submitted to the IRS (the deadline was March 31, 2016), and 1095-C (Employer-Provided Health Insurance Offer and Coverage), which must be provided to employees by May 31, 2016 (or June 30, 2016 if filing electronically). Here is a helpful resource for guidance on the 1095 tax form.

On Deck

It is sometimes said in legal circles that as California goes, so goes the nation. California Governor Jerry Brown recently approved an increase in the minimum wage (incrementally increasing up to $15.00/hour in 2022). New York Governor Andrew Cuomo recently signed a similar bill, raising the minimum wage to $15.00/hour in his state. In San Francisco, the Board of Supervisors approved a measure last week making the city the first in the country to mandate paid leave for new parents. On the Federal front, there is a pending Executive Order (EO 13706) that would establish, for all federal contractors and subcontractors, paid sick leave for up to seven days per year.

With major states backing a higher minimum wage and paid family leave, and with the momentum of politicians who support the initiative (including Bernie Sanders, who recently won the Wisconsin primary), are more major changes around the corner—in Wisconsin or on a national level? How would these changes affect your business? What percentage of your workforce is compensated at less than $15.00/hour?

Players Strike

Last week, Dane County Circuit Court Judge C. William Foust ruled the right-to-work law, which prohibits labor unions from requiring workers to pay union fees, violates the Wisconsin constitution. Attorney General Brad Schimel has asked Judge Foust to stay his decision and also petitioned the Court of Appeals to overturn Foust's decision. Stay tuned.

Extra Innings

Form I-9 expired on March 31, 2016, but the revised form is not yet approved. The comment period on the new form extends until April 27, after which USCIS will review comments before finalizing the new form and publishing notice of its effective date. More information on the proposed changes is available here.

Legal Update

This Play is Under Review

The Federal Arbitration Act states that arbitration clauses “shall be valid, irrevocable, and enforceable,” a rule the U.S. Supreme Court has consistently upheld in a variety of circumstances (e.g., consumer agreements). Now, the United States Court of Appeals for the Seventh Circuit entertains a Wisconsin case (Defendant is Epic Systems of Verona) regarding the enforceability of arbitration clauses in employment agreements. Can employers circumvent established employment law—including the National Labor Relations Act, WC, UI, FLSA, ADA, etc., by requiring employees to pursue any such claims through arbitration?

Business take-away: It is hard to imagine that business owners will be able to obfuscate all employment-related litigation through arbitration clauses. On the other hand, the opportunity to curtail even one or two areas of exposure may be reason to include such a clause in your employee handbook, employee contracts, or elsewhere. Contact Adam at 414-446-8800 or adam@goldsteinsc.com should you wish to discuss adding arbitration language to your employee handbook or employee contracts.

Seventh Inning Stretch

Ariens Co., a snow blower and lawnmower manufacturer, employs a large group of Somali Muslims at its plant in Brillion, Wisconsin. Many of the observant employees pray several times a day, varying with the season (e.g., dawn and sunset). The company shifted from past practice when it eliminated flexibility in its break policy – reverting to two scheduled ten-minute breaks per shift. Of the group of 53 Somali Muslims who protested Ariens Co.’s new policy, 32 chose to stay with the company, 14 left the company, and seven were fired. An EEOC discrimination charge is expected.

In Colorado, Cargill Meat Solutions fired 150 Somali Muslim employees for job abandonment when the employees left their jobs in protest against rumored changes to company break time policy. Discrimination complaints have been filed against Cargill Meat Solutions on behalf of more than 100 former employees.

Business take-away: While Wisconsin state law does not require employers to provide adult employees with breaks, employers are required to reasonably accommodate religious beliefs and practices. One of the issues with the Ariens Co. matter is whether allowing multiple and varied unscheduled break periods, which may disrupt production, is considered either an “undue hardship” on the employer’s operations or a reasonable accommodation of religious practices. Further, will the fact that Ariens allowed such breaks for some time prior to the change in policy affect the decision? Contact Adam at 414-446-8800 or adam@goldsteinsc.com should you have questions regarding break periods, religious accommodations, or workplace discrimination.

Legislative Update

Sabermetrics

EEO-1 reporting requires companies with 100 or more employees (or 50-99 employees if contracted with the federal government) to collect data on hiring and employment patterns, including representation of women and minorities.

Beginning in 2017, EEO-1 reports will require employers to submit considerably more employee-specific wage information - which may point to pay discrimination relative to gender, race, or ethnicity. The EEOC intends to gather this data by job category and compare “within-job-category variation, across-job-category variation, and overall variation” to determine discriminatory practices and to address any existing wage gaps. The EEOC has released potential revisions and a corresponding proposed survey for EEO-1 reporting.

Business take-away: When the proposed changes take effect, you will likely need to update your EEO-1 reporting protocol in order to comply with the new information requests by the EEOC. Now is the time to audit your payroll data to determine how easy, or difficult, it may be to comply. Contact Adam at 414-446-8800 or at adam@goldsteinsc.com should you wish to schedule a consultation regarding how to best prepare for the revised EEO-1 reporting requirements.

Interleague/Minor League Play

The United States Department of Labor (DOL) recently issued an interpretation on the liability of joint employers. The interpretation specifies “when joint employment exists, all of the joint employers are jointly and severally liable for compliance with the FLSA and MSPA,” which includes calculating overtime. The DOL also spoke to the nature of joint employment—vertical joint employment refers to an employer that is economically dependent on another entity (e.g., an employee hired by a staffing agency), while horizontal employment occurs when “two (or more) employers each separately employ an employee and are sufficiently associated with or related to each other with respect to the employee” (e.g., one employee working at sister restaurants).

In related news, a recent Wisconsin law states that a franchisor is not an employer of a franchisee or its employees, which eliminates UI and WC exposure but does not override the federal law in this area.

Business take-away: Even if you are not a worker’s direct employer, you could be responsible for violations of the National Labor Relations Act (NLRA), OSHA (Occupational Safety & Health Administration), or the Fair Labor Standards Act (FLSA). This is particularly important for employers who rely on subcontractors or employment agencies. Contact Adam at 414-446-8800 or at adam@goldsteinsc.com should you have any questions regarding joint employers or other employee classifications.

There's No Crying in Baseball

Your HR Department notifies you that an employee recently posted a profanity-laden rant about the company on social media. How do you respond? Employers undoubtedly have a legitimate interest in discouraging online and social media posts that cast the company in a negative light. In an increasing number of cases, however, such posts are found to be “protected activity” under the National Labor Relations Act (NLRA). The NLRA was intended to protect employees’ right to organize and, to that end, to express themselves. Unsurprisingly, social media has become an increasingly common forum in which to do so. A recent case involved a disgruntled Chipotle employee who criticized the company on Twitter. Upon learning of the post, Chipotle discharged the employee for violating its social media policy. The court found that the employee’s personal gripe constituted protected activity under the NLRA and ordered Chipotle to reinstate the employee, with back pay.

Business take-away: Implementing a social media policy can go a long way to protect a company’s reputation, but such policies must be very carefully crafted to be enforceable under the law. Contact Michael at 414-446-8800 or at michael@goldsteinsc.com for guidance on implementing a social media policy that is both effective and enforceable.

Links of Note

A Happy Clubhouse

Sigal Barsade and Olivia O’Neill speak to the importance of understanding and addressing emotional cultural influences in the workplace, which can result in more highly motivated employees and greater productivity.

"Most companies don’t realize how central emotions are to building the right culture. They tend to focus on cognitive culture: the shared intellectual values, norms, artifacts, and assumptions that set the overall tone for how employees think and behave at work. Though that’s incredibly important, the authors’ research shows that it’s only part of the story. The other critical part is emotional culture, which governs which feelings people have and express at work."

Intentional Walk

Many workers dread difficult conversations with their employees, friends, or co-workers—especially if it involves criticism. Douglas Stone, Bruce Patton, and Sheila Heen suggest that sometimes avoiding a difficult conversation could be the best option.

"Leaders who decide carefully and strategically about whether to speak up or let it go aren’t abdicating responsibility. They are taking responsibility for making sure that the messages they do communicate are delivered for the right reasons and generate the desired results."

The All-Star Game

The best group work product may not come from a rigorous selection of experts or strict, highly focused meetings. Google found that groups tend to work best together when there is a connection beyond work efficiency.

"Project Aristotle is a reminder that when companies try to optimize everything, it’s sometimes easy to forget that success is often built on experiences — like emotional interactions and complicated conversations and discussions of who we want to be and how our teammates make us feel — that can’t really be optimized."

Rookie Mistakes

Business owners spend plenty of time and money training employees. Does this job training really pay off, or is it a waste of resources? How should a business owner address weak performers?

"A new study conducted in Tennessee...found a way to boost teacher performance that is both cheap and effective – simply pair up low performers with super stars for coaching."

The Strangest Things We’ve Heard of Late

I Don’t Care If I Never Get Back

Veteran baseball player Adam LaRoche, most recently of the Chicago White Sox, is retiring from baseball and forgoing $13 million remaining on his contract following a workplace dispute with White Sox management. LaRoche’s 14-year-old son joined the White Sox players in the clubhouse throughout the 2015 season, but White Sox management implemented tighter restrictions on family and friend access for the 2016 season. White Sox General Manager Kenny Williams responded to LaRoche’s decision, "name one job in the country where you can bring your child to work every day."

No Joy in Mudville

In Kobe Bryant’s last season in the NBA, the Los Angeles Lakers notched only 17 wins and made headlines for various “off-the-court” issues. Most recently, D’Angelo Russell, a rising star on the team, recorded and posted a video of teammate Nick Young chatting about relationships with women other than his fiancée (popstar Iggy Azalea). Lakers players have since ostracized Russell, and the end of the Lakers season could not come soon enough – save the Kobe coronation.

Rush the Mound

In a scene straight out of Anchorman or The Naked Gun series, employees of rival Chinese construction firms did battle in the streets of a northern China town - Transformers style. Two employees were injured, including one driver who was shot in the chest with a pellet gun, and six front-end loaders were damaged, two of which were upended.