Third Quarter 2010

 

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In this issue:

Legislative Update

Pending Federal legislation of note

Supreme Court upholds arbitration agreements

Wisconsin’s Indoor Smoking Ban

In the News

Facebook strikes again

Employees at Cargill’s Milwaukee plant vote against joining union

Claims of a different color

EEOC steps up enforcement

The Strangest Things We’ve Heard of Late

Published or quoted elsewhere:

Are Paid 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

Legislative Update

Pending Federal legislation of note

  • Protecting America’s Workers Act (H.R. 2067)

    This bill would amend the Occupational Safety & Health Act to increase protections for whistleblowers and penalties for violators. Subcommittee hearings were held on this bill on April 28, 2010.

    On the opposite side of the equation are the OSHA Voluntary Protection Programs (http://www.osha.gov/dcsp/vpp/all_about_vpp.html) and a State of Wisconsin equivalent (WisCon, http://www.slh.wisc.edu/wiscon/), both of which offer employers assistance in auditing workplace health and safety issues. In doing so, these programs serve to limit (or possibly even eliminate) an employer’s exposure for issues that are identified during the audit process, and provide the employer an opportunity to put best practices into place to avoid employee missed time, worker’s compensation costs, or adverse publicity.

  • Protecting Older Workers Against Discrimination Act (H.R. 3721 / S. 1756)

    This bill seeks to recognize that proof of discrimination, and in this case age discrimination, is often times not explicit (i.e. a manager does not necessarily say “you are being terminated because of your age”). Accordingly, this bill would change the law such that a claimant would only have to show that age was a motivating factor, even if not necessarily the motivating factor, in the alleged discriminatory action. Subcommittee hearings were held on this bill on June 10, 2010.

Supreme Court upholds arbitration agreements

In a 5-4 ruling, the United States Supreme Court recently held that an employee who alleged his termination was based on race may be required to arbitrate his claim (as opposed to filing with the EEOC or state equal rights division). The Court held that, based on the language of the arbitration clause, the arbitrator is empowered to decide whether the discrimination claim should be arbitrated or proceed to court. The case is Rent-A-Center v. Jackson (http://www.supremecourt.gov/opinions/09pdf/09-497.pdf).

Presently pending before Congress is the Arbitration Fairness Act (H.R. 1020/S. 931). If enacted, this law would sharply restrict the use of such arbitration clauses and, potentially, cancel out the Supreme Court’s decision in Rent-A-Center. In the interim, the Rent-A-Center decision serves as an invitation to employers to think about the potential efficiencies and other advantages of steering as many employment (and consumer) matters to arbitration as possible.

Wisconsin’s Indoor Smoking Ban

On July 5, 2010, Wisconsin’s Indoor Smoking Ban took effect. If you haven’t done so already, now is the time to post notice of the new law and amend your personnel policies to document that you have made “reasonable” efforts to comply with the new law.

In the News

Facebook strikes again

The City of West Allis has moved to terminate a dispatcher related to a post she put on her Facebook page. The employee, a 21-year veteran, posted (while off duty, and presumably in jest) that she is addicted to “Vicodin, Aderall, quality marijuana, MD 20/20 grape, and absinthe.” The City contends that the employee’s Facebook post undermines the mission of her department, and that her disciplinary history placed her at the termination stage anyway. An arbitrator ruled that the Facebook offense is not worthy of termination. The City has since appealed that determination to the Circuit Court. Stay tuned. See: http://www.jsonline.com/blogs/news/95125549.html

Survey question: Do you police employee posts that mention the company on Facebook, blogs, or elsewhere on the Internet? If so, how do these posts come to your attention? Click here to respond. Aggregated results will be shared in the next issue. No names or identifying details will be included.

Employees at Cargill’s Milwaukee plant vote against joining union

The International Brotherhood of Electrical Workers Local 494 recently petitioned to unionize electrical and mechanical maintenance employees at Cargill Meat Solutions Corp.’s Milwaukee Plant. Workers voted 32-18 against joining the union.

Employer takeaway: The vote is significant because it highlights the difficulty unions have had in their organizing activities as of late, and a larger loss of momentum (including that the Employee Free Choice Act has stalled in Congress for approximately a year now).

Claims of a different color

  • Discrimination against the unemployed

    According to recent labor statistics, for every job available there are at least 5.5 people looking. In such a market, some employers are stating publicly that they are not interested in the unemployed. The rationale: “We typically go after people that are happy where they are and then tell them about the opportunities here.” See: http://www.huffingtonpost.com/2010/06/04/disturbing-job-ads-the-un_n_600665.html

    Employer takeaway: While not illegal per se, the ultimate legal question is whether such a practice has a “disparate impact” (i.e. a discriminatory effect, regardless of the employer’s intent) on, for example, older workers.

  • Caregiver bias

    A recent report suggests that there has been a surge in lawsuits by individuals alleging that they were discriminated against because of their caregiver obligations (e.g. to care for an elderly parent or an infant child). Statistics reflect 260+ such cases filed in 2008, compared with less than 50 in years prior to 1995. See: http://www.npr.org/templates/story/story.php?storyId=127531355

    Employer takeaway: While we all struggle with work-life balance, these suits point to two types of emerging issues: (1) accommodations that are intended to facilitate an employee’s work-life balance, but have the practical effect of placing the employee on “a different track” than others performing the same duties (e.g. less travel, fewer responsibilities, etc.); or (2) discrimination that is, on its face, about availability for work but, at its root, is really about gender or other protected bases.

EEOC steps up enforcement

The new leadership of the EEOC is now in place, and the EEOC’s funding and staff has increased. Whereas it might be said that, during the Bush years, the agency focused on outreach and educational programs (the theory being that a proactive approach would ultimately reduce the number of claims), the focus appears to be shifting to enforcement. As an aside, both the number of cases and case processing times have increased substantially over the past 5-10 years.

Not only has the EEOC budget increased by over $30 million, it is expected to add approximately 100 investigators before the end of the year. In coming months, EEOC enforcement guidelines are expected for the Americans With Disabilities Act Amendment Act (ADAAA), the Genetics Information Nondiscrimination Act (GINA), and the Lilly Ledbetter Fair Pay Act of 2009. See: http://www.bizjournals.com/houston/othercities/nashville/stories/2010/06/28/focus4.html?b=1277697600^3565301&s=industry&i=human_resources

The Strangest Things We’ve Heard of Late

A former New York business banker argues that male co-workers found her figure “too distracting,” leading to her being disciplined and ultimately terminated. A friend of the complainant says she is a bit of a “man magnet.” “I’ve seen men turn into complete idiots around her. But it’s not her fault that they act this way, and it shouldn’t be her problem.” The complainant contends that she was told that other females “may wear what they like, as their general unattractiveness rendered moot their sartorial choices.” See: http://www.abajournal.com/news/article/
curvy_banker_says_she_was_fired_for_being_too_distracting
_in_business_suit_

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8/6/10

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Polish Center, Franklin


10/8/10

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Wisconsin State SHRM Conference

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Appleton, Wisconsin

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