Third Quarter 2011

 

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In This Issue:

Legislative &
Regulatory Update

Changes in Wisconsin Employment Law That Warrant Your Attention

Litigation Update

Retaliation Claims Continue…and Cost

Role Reversal

New Filings of Note

In the News

More Than You Ever Wanted to Know

Published or Quoted Elsewhere:

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)

Legislative & Regulatory Update

Changes in Wisconsin Employment Law That Warrant Your Attention

  • Concealed carry. On November 1, 2011, Wisconsin will become the forty-ninth state to permit individuals with certain training and permits to carry concealed weapons (Illinois being the lone exception). The new law does not require business owners to permit concealed weapons on their property, and there are obvious reasons to prohibit them. In fact, this may be a good time to revisit and strengthen work rules to make it clear that weapons are prohibited in the plant, office, company vehicles and vehicles parked on company property. Consider posting the policy in the front entryway or reception area so that vendors, customers and solicitors are also on notice.
  • Employer take-away: Feel free to call or e-mail us for a complimentary review of your current policy or for policy language that may be helpful under the new law.

  • News on the unemployment insurance front
    • Employers are now required to notify the Department of Workforce Development of any individual who fails or refuses a drug test. This information may serve to block their claim for unemployment insurance benefits.
    • Watch your mailbox. The Department of Workforce Development may be asking you to contribute to the repayment of a $1.3 billion loan from the federal government. Relative to the economic downturn, the state exhausted its unemployment insurance reserves and turned to the federal government for a loan. The state now wants to repay that sum, as its failure to do so might jeopardize other federal funding (in addition to the fact that interest continues to accrue until it does). You may have already received notice of the special assessment. Invoices will be sent in August.
  • Within the week, Milwaukee County Supervisors will take up a proposal to provide health insurance benefits to domestic partners of Milwaukee County employees. Opponents point to the cost of offering new benefits – especially in times of severe budget cuts. Supporters suggest that offering domestic partner benefits will generate a better pool of applicants and that thriving cities tend to have thriving gay and lesbian communities.
  • Employer take-away: A reminder that, even in a down economy, employers must continue to focus on how to attract and retain top talent.

  • Senate Bill 137, recently introduced in the Wisconsin State Senate, would penalize a company for hiring individuals who are not legally eligible to work in the United States. The bill would make the violating company ineligible for certain tax exemptions, governmental contracts, grants and loans. This comes on the heels of a United States Supreme Court decision (Chamber of Commerce v. Whiting) which upheld a similar Arizona law. It also comes amid continued debate about whether employers should be required to use E-verify (at present, it is available to employers but not required). The Arizona law at issue in Whiting requires that employers use E-verify.

Litigation Update

Retaliation Claims Continue…and Cost

  • In May 2011, a federal jury awarded $1.5 million to a Town of Beloit police department dispatcher/town clerk and her husband (then a deputy police chief) who were retaliated against for raising questions about potential racial discrimination and racist remarks. After raising the issue, the dispatcher/clerk saw her hours reduced and her husband was demoted in a claimed reorganization.
  • Also in May 2011, a federal jury awarded $1.1 million to a Madison Area Technical College professor who lost his job after complaining about religious harassment and discrimination. The next question in the case is whether the court will order the professor reinstated to his prior position. As one might imagine, a substantial sum hangs in the balance.
  • A recent consent decree awarded $110,000 to a Hmong woman who claimed that her employer, Chubb & Son, tolerated a hostile work environment and retaliated against her (by denying her a promotion) after she filed a claim of discrimination.
  • Employer take-away: More than 36% of all cases filed with the EEOC in 2010 included a claim of retaliation. Even if the underlying basis for the alleged retaliation is ultimately dismissed, the retaliation claim may survive and prove dangerous and costly.

Role Reversal

  • LensCrafters has agreed to pay $192,500 to a former male employee for alleged sexual harassment by a female co-worker. The female co-worker made repeated sexual advances over the course of a year and, after being rebuffed each and every time, ultimately filed a claim of sexual harassment against the male employee. The male employee contended that, although he brought his concerns to management repeatedly during the same period, his complaints were never taken seriously. He also contended that, although he has considerable experience as a lab technician, his search for new employment was inhibited by the fact that LensCrafters dominates the marketplace (operating as DOC, Pearle Vision, Sears Optical, Target Optical, etc.)

New Filings of Note

  • The Equal Employment Opportunity Commission (EEOC) has sued Starbucks, claiming that it fired a barista because she is a dwarf (and after just three days on the job). The EEOC claims that, in failing to honor the employee’s request for a stool or small stepladder, it denied her a reasonable accommodation. Starbucks claims that the employee was a danger to herself, co-workers, and customers.
  • The National Labor Relations Board (NLRB) recently issued a complaint against Hispanics United of Buffalo for terminating an employee relative to his Facebook posts. The employee posts were critical of the agency and prompted a number and variety of responses from other employees. The NLRB’s position is that this speech constitutes concerted activity (a conversation among co-workers regarding terms and conditions of employment) and, as such, is conduct protected by the National Labor Relations Act.
  • Allen v. City of Chicago. Chicago Police Sergeant Jeffrey Allen alleges that he should be compensated for off-duty time spent on his PDA with work-related e-mail, telephone calls, voice mails and text messages. The City faces a major hurdle in that it likely lacks records that might undermine Sgt. Allen’s claim. Further, if the City loses the case, its exposure to other, similar claims could be enormous.
  • Employer take-away: Recognize that, for non-exempt employees, the cost of expecting that they will be available by phone, e-mail, or text may be far greater than the monthly phone charge itself. A strong policy that distinguishes expectations for on-duty and off-duty time is in order, as well as a requirement that employees document and report all claims of off-duty work.

In the News

More Than You Ever Wanted to Know

  • On the hiring front, social media represents an increasingly complex new battlefield. In one corner, there are services such as Social Intelligence, which claims to scour the Internet for information about job applicants. As noted in a recent NYT piece on the subject, businesses may be learning far more about job applicants than those applicants ever intended, such as:
    • inclusion in a Facebook group entitled “This Is America. I Shouldn’t Have to Press 1 for English”
    • the use of Craigslist to look for OxyContin
    • sexually explicit photos, text messages, or videos (a separate article suggests women may be more likely to engage in such behavior than men)
    • racist remarks
    • displays of weapons
    • evidence of drug or alcohol use

In the other corner are services such as Reputation.com which promises to “monitor your information online, remove personal information from the web, define your online presence, and defend your reputation from negative comment.”

Let the games begin!

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

Upcoming Events

10/12/11

"Hiring & Firing ”

UWM Small Business Development Center


For more information on upcoming events, click here.