Third Quarter 2016

 

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In This Issue:

FLSA Update

Legal Update

Arbitration Agreements - Under Review

Regulatory Update

"Concerted Activity" - Rules of the Game

Drug Testing

Fit to Compete

Team Uniforms

Risk of Injury

Workplace Trends

Employment - Qualifying Events

Water Cooler Talk – Good Sportsmanship

Corporate Communications - Lost in Translation

Links of Note

Coaching

Teamwork

Emotional Intelligence

Under Pressure

Strangest Thing

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

You may have seen the FLSA FAQs we published following the May 18th release of changes by the Department of Labor (DOL) to the Fair Labor Standards Act (FLSA) white collar exemptions. (See installments #1, #2, and #3). Please continue to contact us if you have questions or concerns to ensure you are prepared for the December 1, 2016 effective date. FLSA questions and compliance issues continue to cause considerable consternation for businesses large and small—from tips and overtime pay at Dominos to independent contractor and related issues at Uber.

Enjoy our latest newsletter, this time with an Olympic theme.

Legal Update

Arbitration Agreements - Under Review

A federal appeals court recently ruled against Epic Systems' employee arbitration agreement. Similarly, the National Labor Relations Board found that Menards illegally required employees to sign arbitration agreements which prohibited employees from participating in class-action lawsuits.

The suit that former Fox News anchor Gretchen Carlson is bringing against recently ousted chairman Roger Ailes for sexual harassment may also challenge the validity of the arbitration clause in her severance agreement with Fox News. This case has already played out in the media, prompting Mr. Ailes to resign and other current and former Fox News employees to come forward with similar allegations.

Business take-away: For years, companies have included arbitration clauses in their employment agreements, seeking to stay out of court. While justified for several reasons, such clauses do not serve as absolute protection against lawsuits. If the most dangerous, or expensive, litigation cannot be avoided with such a clause, is it still worth having?

Regulatory Update

"Concerted Activity" - Rules of the Game

The National Labor Relations Act (NLRA) governs the rights of employees to engage in “concerted activity.” Generally speaking, this means communications involving two or more employees regarding terms and conditions of employment. Recently, the National Labor Relations Board (NLRB) ruled that various employee handbook policies were unlawful, as they prohibit, or could reasonably be read to prohibit, concerted activity. Policies that were called into question include:

  • employer rules on confidentiality
  • employee conduct
  • copyrights
  • photography and recording
  • restrictions on leaving work
  • conflicts of interest

The NLRB has also provided examples of both permissible and impermissible language.

Business take-away: While employment policies are often worded broadly to best protect an employer, the NLRA provides a new series of drafting considerations. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for help in assessing your current employee handbook.

Drug Testing

The Occupational Safety and Health Administration (OSHA) recently published new rules on injury/illness reporting. The new rules prohibit mandatory post-accident drug testing if it might discourage employees from reporting work-related injuries or illnesses. Instead, employers should “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” For example, it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury or an injury caused by a lack of machine guarding or a machine or tool malfunction.” Per OSHA, drug testing can constitute an “adverse employment action” and, as such, may be considered retaliation for reporting a workplace injury.

Business take-away: The new rules are effective August 10, 2016. Be sure to review your drug-testing policy to ensure it does not run afoul of the new rules. It should also state that all workplace injuries are to be reported immediately. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for further guidance on issues related to drug testing.

Fit to Compete

The Equal Employment Opportunity Commission (EEOC) recently announced final rules on employer-provided wellness programs in relation to compliance with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The final rules, effective January 2017, offer guidelines on information that can be requested and retained from employees, limits to financial incentives, reasonable accommodations, and more.

Team Uniforms

The New York Commission on Human Rights recently issued guidelines that prohibit “enforcing dress codes, uniforms, and grooming standards that impose different requirements based on sex or gender.” Several competing factors will continue to influence dress codes going forward – from gender issues to the ongoing struggle between corporate and personal identity.

Risk of Injury

The Wisconsin Office of the Commissioner of Insurance recently approved a 3.19% reduction in premium rates for workers’ compensation, effective October 1, 2016. Manufacturing may see a 5% rate reduction. While the change will bring a reduction in overall rates, not all industries will see a reduction in premiums. Industries are classified by level of risk of work performed which in turn drives premium rates. So, the reduction in rates does not allow you to easily calculate what the premium reduction might be.

Workplace Trends

Employment - Qualifying Events

Harvard sociologist Devah Pager recently completed an experiment to determine how felons perform in the workplace—with some unexpected results. Pager found that among military service members serving between 2002-09, ex-offenders were no more likely to be kicked out of the army and were promoted faster and to higher levels than those without a criminal record.

Meanwhile, in some areas of the country, employers are struggling to find employees who can pass a pre-employment drug test. Atlanta-based employers claim drug testing is “the No. 1 reason they can’t hire enough workers” at their companies. Other companies have reported that mentioning the drug test during the application process has led to a major reduction in interested candidates. To compound the issue, a recent study suggests a general decrease in prime-age workers in the job market.

In related news, Cory Groshek, of Green Bay, is taking advantage of businesses’ non-compliance with the Fair Credit Reporting Act (FCRA). Groshek applied for 562 jobs in 18 months, looking for companies that fail to properly disclose their intention to perform a background check as part of the application process. Groshek has sued at least 46 companies and recovered over $200,000 in settlements.

Business take-away: It may be time to revisit your hiring protocols and background check procedures. Make sure your application does not contain language that would invite a claim. For example, for a criminal record to be disqualifying, it must be substantially related to job duties. For more on the "substantially related" test, hiring protocols, and background checks, contact Adam at 414-446-8800 or adam@goldsteinsc.com.

Water Cooler Talk – Good Sportsmanship

In an unusual and polarizing election season, political banter is bound to work its way into workplace conversations. Co-workers and clients may express their political beliefs or concerns, probe those around them for their opinions, or simply react to the latest news reports. Conversation and debate can become tense, and in some situations, workers may feel trapped in a discussion they never wanted to have in the first place.

Business take-away: Some employers have written policies governing political activity at work—though said policies cannot resolve all such issues (e.g., political buttons or clothing, customer encounters). The idea is to be mindful of the fact that emotions are high but stop short of banning all such discourse.

Corporate Communications - Lost in Translation

Corporate communications play a critical role in any organization, influencing everything from employee morale to public perception of your business. Two of the country’s largest, most prominent companies recently suffered embarrassing missteps in this regard. Microsoft invited interns and potential recruits to a company event known as "Internapalooza." The company’s invitation promised "hella noms" and a chance to "get lit."

It should be no secret that Goldman Sachs monitors employee emails—but the list of the company’s flagged terms recently drew some attention, including phrases like "a sure thing/bet," "worst investment," "embezzled the account," "make it up to you," and a variety of expletives.

Business take-away: Even large, sophisticated companies are susceptible to major missteps: Microsoft, by trying too hard to relate to a new demographic, and Goldman Sachs, revealing how precisely it scrutinizes employee email. How would your internal communications look to the outside world?

Links of Note

Coaching

Traditionally, supervisors are trained to begin a “crucial conversation” with praise, then deliver the criticism (the reason for the discussion in the first place), and finish on a positive note. Adam Grant suggests this method may be ineffective for both parties.

Teamwork

Microsoft examined the relationship between performance, team satisfaction, and information flow within organizations. The results of Microsoft's research offer information on how to predict and address issues in your workplace.

Emotional Intelligence

A recent Economist study points to a discrepancy between C-Suite employees and their subordinates in the perception of critical C-Suite skills. While C-Suite respondents wanted to improve technological and financial skills, subordinates hoped for improvements in leadership and emotional intelligence.

Under Pressure

Stress can negatively affect individuals but can also prompt innovation or action. A study published in the Harvard Business Review seeks to define the ideal level of stress.

The Strangest Things We’ve Heard of Late

One of football player Johnny Manziel’s attorneys resigned after he accidently texted the following to the Associated Press, instead of co-counsel: “Heaven help us if one of the [probation] conditions is to pee in a bottle.” In a similar mix-up, a Mauston man was met by police and issued a citation for possession of drug paraphernalia when he mistakenly texted the wrong person about the location of the meet.

A Canadian woman placed too much trust in her car’s GPS. Following directions, the driver drove her car off a boat launch and into Lake Huron. To be fair, weather was poor and the driver was unfamiliar with the area, but she also appears to have missed a key opportunity to course correct. Thankfully, the driver escaped the vehicle unharmed, though her car was beyond repair.

Business take-away: From cellphones to tablets and computers, technology helps us live our lives in ways we could never have imagined just 10 years ago. However, relying blindly on technology can have disastrous consequences as demonstrated here. With the introduction of Pokemon Go, we can expect many more such stories—both humorous and dangerous. As to your business and employees, the stakes are high. What protocols have you implemented to avoid or minimize the chances of such errors?

Upcoming Events

8/23/16

FLSA Update

SRKA

8/26/16

Social Media & the Law

SEWI Library Directors

9/23/16

FLSA Update

Elmbrook Rotary

9/28/16

FLSA Update

Milwaukee Bar Association

10/20/16

Employee Handbooks

ABC Conference

11/17/16

Social Media & the Law

MBA Law & Technology Conference


For more information on upcoming events, click here.