Third Quarter 2013

 

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In This Issue:

In the News

Genetic Information Non-Discrimination Act (GINA) Settlement

Employee Theft

Defense of Marriage Act (DOMA)

Innovations

Longer Shifts, Fewer Days at Work: Benefits for Employees and Business Owners

Human Resources Uses “Big Data” to Identify Qualified Candidates

Changing Corporate Culture, but How?

PPACA-Related Developments

Exchange Notice

Spousal Coverage

COBRA Notice Update

Legislative and Regulatory Update

The New I-9 Form & E-Verify

The EEOC’s Guidance Regarding Applicants and Employees Who Experience Domestic Violence, Sexual Assault, or Stalking

2013 Wisconsin Unemployment Update

Litigation Update

FLSA Lawsuit by Corrections Officers

Reasonable Accommodations Under the ADA – Soldier was Discriminated Against by FBI

Deductions from Paychecks Ruled Illegal

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

Genetic Information Non-Discrimination Act (GINA) Settlement

Tulsa-based Fabricut (a fabric distributor) recently entered into a settlement with the EEOC on charges brought under the Genetic Information Non-Discrimination Act (GINA). This is the first GINA-related settlement on record. The terms of the settlement include a payment by Fabricut of $50,000 and an agreement by Fabricut to take affirmative action to prevent further discrimination. The case stems from a female employee who sought to go from temporary to permanent employment. Fabricut notified the employee that, based upon an initial medical exam, she needed further medical testing and evaluations for carpal tunnel syndrome (which, her personal physician insisted, she did not have). Ultimately, Fabricut denied her the permanent position.

Employer take-away: Look for more action under GINA, which became law in 2008. From the EEOC: “One of the six national priorities identified by the EEOC's Strategic Enforcement Plan is for the agency to address emerging and developing issues in equal employment law, which includes genetic discrimination.”

Employee Theft

A former Wheaton Franciscan finance department employee is alleged to have stolen $850,000 from the health care organization. In this instance, it appears that the former employee added paid time off (“PTO”) to the payroll records of random employees. After the payout, which the former employee deposited into her own bank account, she deleted the false payroll records.

Employer take-away: The scheme in this case was a bit more sophisticated than usual. Do you have protocols in place to identify such payroll irregularities?

Defense of Marriage Act (DOMA)

The Supreme Court’s June decision striking down the federal Defense of Marriage Act has had sweeping implications for individuals and businesses nationwide, including those in states that do not recognize same-sex marriage. On the one hand, two recent federal court decisions stand for the proposition that same-sex couples married in states that recognize same-sex marriage are entitled federal benefits, no matter the state in which they currently reside. On the other, federal and state agencies seem conflicted. Consider, for example, the Department of Labor, which recently updated Fact Sheet 28F (re: FMLA) to state “spouse means a husband or wife as defined or recognized under state law for purpose of marriage in the state where the employee resides.” Compare this to an IRS August 29 press release which points in the opposite direction. The State of Wisconsin Department of Revenue insists that same sex couples residing in Wisconsin cannot file jointly, at least for state tax purposes. Stay tuned.

Employer take-away: While the federal agencies may eventually fall into line, not necessarily so for the states. For example, Wisconsin banned same-sex marriage via a constitutional amendment passed in 2006 but does maintain a domestic partner registry.

Innovations

Longer Shifts, Fewer Days at Work: Benefits for Employees and Business Owners

Wisconsin’s Oldenburg Group gives employees who are willing to work weekends the option of three 12-hour shifts. These employees work Friday, Saturday, and Sunday (36 hours), are off Monday through Thursday, and receive pay as if they worked 40 hours per week. For Oldenberg, it means one shift change instead of three on the weekends. Read more in this article.

Employer take-away: Needless to say, much here depends on the nature of your industry and workplace. Think creatively about whether this is a possibility – both from a production standpoint and in terms of employee preferences. A recent informal survey done by our friend and colleague, Aleta Norris of Living as a Leader, reminds us that employees (and especially next gen employees) are struggling mightily with work-life balance issues. Maybe, just maybe, you are in a position to solve two problems at once.

Human Resources Uses “Big Data” to Identify Qualified Candidates

For companies seeking specialized talent, the process of locating, hiring and developing that talent has become more scientific. A new method of collecting data (referred to as work-force science) involves mining emails, blogs, tweets, social network sites, and even lines of computer code. Some firms are now using this approach to decipher who may be looking for a job - before the individual even knows they are looking.

Employer take-away: Are you positioned to take advantage of the increasingly important intersection between HR and IT?

Changing Corporate Culture, but How?

So much has been written about changing a “corporate culture” – moving away from a real or perceived “old boys' network,” for example. The Harvard Business School recently undertook such an effort after observing significant and measurable gender-related issues in its own student body and faculty. What HBS discovered, both in terms of the underlying issues and obstacles to change, is quite telling – laid out here complete with charts, graphs, and multimedia.

PPACA-Related Developments

Exchange Notice

As you have no doubt heard, October 1, 2013 is the deadline for providing notice to your employees about PPACA’s Health Insurance Exchanges. The Department of Labor has issued two model notices – one for employers that provide health insurance and one for employers that do not.

Spousal Coverage

One of the first big “shake-ups” relative to PPACA is a shift in spousal coverage – as the definition of dependents (those who must be offered coverage by any qualified plan) does not include spouses. Many business owners have been quick to end spousal coverage and “cash in lieu of” options. Consider this:

  1. PPACA requires that a working spouse be offered coverage by their own employer (if that employer offers qualified coverage);
  2. It could reduce premiums and other costs;
  3. PPACA does not require it.

COBRA Notice Update

With all the focus on the Notice of PPACA’s Health Insurance Exchanges (see above), don’t forget the requirement for new COBRA notices. The DOL's new notice and redline version can be found here.

Legislative & Regulatory Update

The New I-9 Form & E-Verify

There has been some confusion among business owners and HR professionals about “pre-populating” Section 1 of the new I-9 form, presumably out of a desire to facilitate completion of the form by employees. Although common practice, U.S. Citizenship and Immigration Services (UCIS) warns that doing so may result in outdated or incorrect information in the section - and corporate liability for errors (even if the employee has reviewed and signed-off on the form). UCIS advises that, should you “pre-populate” this section of the form, you must also complete the “Preparer and/or Translator Certification” section of the form.

As to E-Verify, UCIS recently announced that businesses that use E-Verify can have UCIS notify employees of a “Tentative Non-Confirmation” (TNC) (i.e., identification provided by an employee on the I-9 form does not match).

Employer take-away: The enhanced E-Verify process provides notice to the employee directly and gives them eight days to contest the TNC. This relieves the employer of, at a minimum, being the bearer of bad news. To take advantage of this new process, simply have the employee provide his/her email address in Section 1 of the I-9 AND enter the employee’s email in E-Verify.

The EEOC’s New Guidance Regarding Applicants and Employees Who Experience Domestic Violence, Sexual Assault, or Stalking

The EEOC’s new guidance reminds us that Title VII and the ADA prohibit discrimination against applicants and employees who are subject to domestic or dating violence, sexual assault, or stalking.

Employer take-away: Among the questions we get, this is one of the most sensitive. It reflects a desire to support (or at least not discriminate against) the alleged victim balanced against the risk of inviting a potentially volatile situation into the workplace. E-mail kris@goldsteinsc.com if you wish to discuss further.

2013 Wisconsin Unemployment Update

This summer, the Wisconsin State Legislature enacted a series of changes to Wisconsin unemployment law. Highlights of the new law are as follows:

  • Business owners and HR professionals are well aware of the “misconduct” standard, in which case a former employee does not qualify for UI benefits. Business owners and HR professionals are also well aware of how high a bar the “misconduct” standard is in actuality, resulting in benefits being allowed in cases that seem like obvious misconduct. A new standard, entitled “substantial fault,” should be of assistance in such circumstances.
  • In the event of an employee quitting, UI benefits are reduced and conditional. However, there used to be 18 exceptions to the definition of “quit.” That number has been reduced to nine, and the remaining nine have been narrowed.
  • Work search requirements have increased for those receiving UI benefits.

On a related note, UI benefits have been sharply reduced due to the drop in the number of unemployed in Wisconsin. Because Wisconsin’s unemployment rate dropped below 7.0% last month, state residents are now ineligible for certain federal UI benefits. All federal UI benefits are set to expire December 28, 2013.

Litigation Update

FLSA Lawsuit by Corrections Officers

A lawsuit filed last month by State of Wisconsin corrections officers alleges that they are due back pay because of discrepancies in the calculation of their start times. The officers allege that, by rule, they were compensated beginning at the time they assumed their assigned posts and, therefore, not compensated for duties required of them prior to assuming their posts. While projected at only five minutes in duration per officer per shift, the number of officers and length of time that this issue has been ongoing means that the unpaid time numbers get big, and fast. Further, adding unpaid time would bump many officers over 40 hours per week, meaning that they must now be compensated at one and a half times their regular rate for unpaid time. A current projection of the amount at issue is in the millions. Stay tuned.

Employer take-away: While not quite as common as the other wage and hour issues (e.g., exempt status, overtime, etc.), these “donning and doffing” cases continue to pose real problems for business owners. There are a few recent cases that provide good guidance. E-mail kris@goldsteinsc.com for more information.

Reasonable Accommodations Under the ADA – Soldier was Discriminated Against by FBI

In a federal case tried in Virginia over the summer, a former Army Ranger who lost his non-dominant hand during his military service won his lawsuit against the FBI for failing to accommodate his disability. The case revolved around what the applicant was told at the time of his application about job duties vis-à-vis his non-dominant hand and how he was assessed in this regard during the training/evaluation process. More precisely, the case was about whether the ability to shoot a gun with one’s non-dominant hand is an essential job requirement of the position he was seeking. This case was also about the credibility of those involved in the training/evaluation process and includes allegations that efforts were made to undercut his application and shape testimony in defense of the FBI.

Employer take-away: Recent cases have demonstrated that our own sense of what might be an “unreasonable” accommodation is not necessarily the best measure. Understanding what precisely an applicant is capable of, and how that relates to the essential functions of the job at issue, is key. This case is also a reminder about the need to accommodate, and difficulties in accommodating, our veterans (especially those with physical limitations and mental health issues). If the FBI is struggling in doing so, no doubt private businesses are as well. E-mail kris@goldsteinsc.com for more information.

Deductions from Paychecks Ruled Illegal

A Minnesota nightclub was ruled to have violated the law by requiring its bartenders and servers, approximately 750 in all, to cover tabs for customers who refused to pay or failed to sign their credit card receipts. The court is now moving to the damages part of the case, with projections in the six figures.

Employer take-away: This is a question we get all the time. On the one hand, we are constantly looking for ways to ensure employees are following protocol. Oh how it hurts to make a sale but then take a loss because an employee failed to deliver or neglected to properly collect on the tab. On the other, Wisconsin law is clear that deductions from pay checks can only be done in the event of faulty workmanship, loss, theft or damage, and then only with prior consent of the employee. See 103.455, Wis. Stats.

The Strangest Things We’ve Heard of Late

You may recall previously reading in this space about various “new frontiers” in discrimination law – hiring only beautiful people, fired for being “irresistible,” etc. Well, as they say, “it has come to this” (proper decorum precludes us from saying more). For the less daring: a new, creative approach to onboarding and team-building.

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

Upcoming Events

9/17/13

COSBE Roundtable Legal Update

9/19/13

PPACA Update

10/11/13

Social Media, Technology and the Workplace

10/24/13

Health Care Reform: What Small Businesses Need to Know


For more information on upcoming events, click here.