Third Quarter 2012

 

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In This Issue:

In the News

Strategy shift from work site raids to employment records means more employers face risk of “immigration audits.”

Missouri principal resigns after it turns out she’s no friend on Facebook.

In search of the elusive star employee.

Legislative &
Regulatory Update

On the Labor Front

Johnson Controls faces a $188,000 fine for workplace safety violations.

The Equal Employment Opportunity Commission (EEOC) has issued new guidelines

Litigation Update

Recent Verdicts and Settlements

Waupaca County will pay $142,000 to settle a discrimination lawsuit brought by a female deputy sheriff.

A former HR manager for Waukesha Bearing Corporation has been charged in federal court with embezzling more than $576,000 over five years.

The former controller of Robinson Metals Inc. in De Pere, Wisconsin has agreed to plead guilty to embezzling $1.3 million from the company.

McDonald’s franchisee agrees to settle sexual harassment claims for $1 million.

Milwaukee County poised to settle PTSD case for $50,000.

The Strangest Things We’ve Heard of Late

Published or Quoted Elsewhere:

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

In the News

Strategy shift from work site raids to employment records means more employers face risk of “immigration audits.” Chipotle is the highest profile employer to come under investigation by Immigration and Customs Enforcement (ICE) for hiring undocumented workers. For the past two years, it has been the subject of a probe by ICE and the U.S. Attorney’s office. Now the Securities and Exchange Commission (SEC) is looking into whether any criminal wrongdoing has taken place. As a result of the initial investigation, Chipotle has fired over 450 employees in Minnesota who couldn’t confirm the validity of their work documents.

Employer take-away: Employers, and especially those with low-wage, low-skill employees, must have protocols in place to guard against hiring undocumented workers. In years past, employers were not necessarily charged with knowledge of their employees’ improper documentation. Going forward, you may find yourself facing an “ICE I-9 audit” and being seen as complicit with your undocumented employee(s).

  • require new employees to complete the I-9 verification form within three days of their start date
  • carefully check new employee identification and work documents
  • participate in the federal government’s E-Verify program.

Missouri principal resigns after it turns out she’s no friend on Facebook. Clayton High School Principal, Louise Losos, created a Facebook identity as a high school student and “friended” other students at her high school as a means of becoming privy to the students’ chatter on Facebook. The gig was up once one student discovered the new “friend’s” true identity and alerted classmates. The principal took a leave of absence and ultimately resigned from her position. The school issued a statement indicating that there had been a “fundamental dispute concerning the appropriate use of social media.”

Employer take-away: A reminder that social media remains uncharted territory, fraught with peril, but that the old adage, “too cute by half,” applies here as well.

Internet streaming and file sharing now constitutes 25% of a company’s total bandwith.

Employer take-away: The numbers are startling, and it is unclear why such an increase in recent months. One thing is for certain – the numbers are headed upward. What are these activities costing you, in terms of slower Internet access, reduced productivity, etc.? Are you resigned to the cost, and distraction, or have you figured out a way to dissuade and/or police excessive Internet activity?

The answer to this issue's poll is 300%.

In search of the elusive star employee. Despite the fact that it is still an employer’s market, many companies are finding it difficult to attract the right candidate. Hence the so-called “purple squirrel” phenomenon - that rare perfect person for the job, who, despite our best efforts and all the new tools (e.g. LinkedIn, Internet job boards, etc.) remains elusive. Companies are finding that a different approach is required to attract top talent: using different media, building relationships before an offer is made and selling the opportunities that they offer the right candidate. See "The Purple Squirrel: Is the hiring process broken?" for more information.

In another bid to attract and retain talent, some companies are offering domestic partner benefits. While percentages vary, a recent Mercer study found that more than half of companies surveyed offer such benefits (and this is seemingly on the rise across all industries and regions).

Legislative & Regulatory Update

On the Labor Front

  • In May, a federal judge ordered the Piggly Wiggly supermarket in Sheboygan, Wisconsin to restore full-time status and health insurance to employees whose hours were unilaterally reduced to part-time status without negotiating with their union. A few weeks later, Piggly Wiggly announced that the store would be closing, eliminating 108 positions.
  • Labor strife at the Palermo Villa pizza plant continues. At present, over 150 workers continue on strike. A variety of unfair labor practice filings with the NLRB have put off union elections indefinitely. In a somewhat unusual development, the strikers accused the company of retaliating against them by challenging their immigration status. In another, more recent development, County Executive Abele wrote an editorial in the Milwaukee Journal Sentinel vouching for the company owners.
  • In late June, approximately 30 employees at the Birds Eye plant in Darien voted to join United Food and Commercial Workers Union Local 1473. The employees work in Birds Eye’s process control and quality assurance divisions. Birds Eye’s hourly production employees, roughly 300 in number, are already represented by Local 1473. Birds Eye distributes food under the Bird’s Eye, Armour and Aunt Jemima labels.

Johnson Controls faces a $188,000 fine for workplace safety violations. The Occupational Safety and Health Administration (OSHA) has cited Johnson Controls’ Holland, Ohio battery plant for several violations involving worker exposure to lead. Alleged violations include exposing employees to 945° molten lead and failing to require employees to wash hands before eating. OSHA has cited Johnson Controls’ battery group for 64 violations since 2006, including 15 involving lead standards.

The Equal Employment Opportunity Commission (EEOC) has issued new guidelines

  • In April, the EEOC released Guidance on the use and consideration of arrest and conviction records in employment decisions. According to the EEOC, 92% of employers subject applicants to some sort of background check, either to combat theft or fraud, or relative to concerns about workplace violence or a negligent hiring claim. The EEOC’s position is that such checks often times are either discriminatory or have a discriminatory impact on minorities. The EEOC is particularly suspect of decisions made on the basis of an arrest record, as individuals arrested are innocent until proven guilty. See EEOC Enforcement Guidance for more information.
  • The EEOC also issued the “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” under the Age Discrimination in Employment Act of 1967 (ADEA). The question here is when do employment practices impact, intentionally or unintentionally, more on employees over 40 than those under 40, and when does such an impact constitute evidence of age discrimination. See the EEOC FAQ page on the final regulation.

Litigation Update

Recent Verdicts and Settlements

Waupaca County will pay $142,000 to settle a discrimination lawsuit brought by a female deputy sheriff. As part of the settlement, the county will also promote the complainant to detective sergeant within the next three years. According to the complaint, the suit was filed because the woman, who was working as a patrol officer, applied for a promotion to patrol sergeant or detective sergeant multiple times over the course of nine years. Male co-workers who competed with her for the positions reportedly told the detective captain that they wouldn’t take orders from a “skirt.” Other than the complainant, no woman had ever advanced higher than patrol officer. The complainant’s promotion to deputy, some said, was a “token” in this regard.

A former HR manager for Waukesha Bearing Corporation has been charged in federal court with embezzling more than $576,000 over five years. The employee was indicted in May on 30 counts of fraud for writing checks to herself from the company’s petty cash account for “unauthorized and personal expenses.” See the Attorney General’s press release.

The former controller of Robinson Metals Inc. in De Pere, Wisconsin has agreed to plead guilty to embezzling $1.3 million from the company. Over a four-year period, the controller stole the money and used it to buy real estate, build a home and add to his childrens' college fund. He has agreed to pay back the money and faces prison time.

McDonald’s franchisee agrees to settle sexual harassment claims for $1 million. The owner of 25 McDonald’s restaurants in Wisconsin has agreed to settle sexual harassment charges brought by ten former employees with the EEOC. Two women were fired after complaining about behavior ranging from sexual comments to forced touching. Another woman quit. The settlement also includes mandatory training and the creation of a toll-free hotline and e-mail address for reporting sexual harassment.

Milwaukee County poised to settle PTSD case for $50,000. A correctional officer with PTSD, caused in part by an inmate assault years back, claims she was wrongfully terminated by the Sheriff after missing several months of work. While the Sheriff contends the correctional officer failed to provide requested medical information, the Labor and Industry Review Commission ruled that the Sheriff’s office failed to follow federal disability law in its enforcement of attendance and leave of absence policies. The settlement has been approved by the County Board’s judiciary committee and currently awaits approval from the full County Board.

The Strangest Things We’ve Heard of Late

When a Michigan teen found a fingertip in his roast beef sandwich in May, it was clear that a restaurant employee had a mishap with the meat slicer. So why was there no report of an injury (or screaming, or a trail of blood)? A few theories come to mind, all of which revolve around the idea that the employee was fearful of reporting.

Employer take-away:Having a mandatory workplace injury reporting requirement in place serves several purposes. First and foremost, it sets a tone with respect to the reporting of injuries (i.e., management wants to know). Second, it serves as a basis for employee discipline (i.e., failure to report as an independent basis for discipline or discharge, even if the injury is compensable). And, by the way, it reduces the likelihood that your customers will find a finger in their sandwich as well as the nationwide publicity that follows.

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

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

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