Third Quarter 2017

 

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In This Issue:

Legal Update

FLSA Changes in Limbo - Can You Say, "Limbo Lower?"

Milwaukee Restaurant Settles in FLSA Lawsuit

New I-9 Form Issued

Sexual Orientation - Discrimination is Against the Law, or is It?

Legislative Update

Bill Ends Teen Work Permit Requirement

Wisconsin Considers Eliminating Personal Property Tax for Business

Earned Sick Leave Ordinance Takes Effect in Cook County

Workplace Trends

Finding the Right Candidate in a Tight Job Market

Attracting Women in Historically Male-Dominated Industries

Microchipping Your Employees

In the News

An Uber Big Problem

Nasty Yelp Reviews Have Unintended Consequences

Links of Note

Work Conflict and Resolution

Learning on the Job

Problem Solved?

Step Away from the Smart Phone

Strangest Thing

The 27-Year Lawsuit

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

Legal Update

FLSA Changes in Limbo - Can You Say, "Limbo Lower?"

Last week, the Department of Labor began revisiting the Obama Administration's proposed changes to the Fair Labor Standards Act (FLSA). As you may recall, the proposed changes never went into effect – the result of an injunction by a Texas District Court and the November election. Discussions are focused on the new salary threshold, which was expected to increase from $455/week (just over $23,000/yr.) to $917/week (just over $47,000/yr.). The DOL has published a Request for Information soliciting feedback from the public on the regulations, including a 60-day comment period. Meanwhile, the Texas case remains pending. Expectations are that, at a minimum, the revised salary threshold will be lowered from $917/week.

Milwaukee Restaurant Settles in FLSA Lawsuit

In other FLSA news, Water Street Brewery has agreed to pay $825,000 to settle a lawsuit brought by 78 current and former employees who alleged their compensation was below minimum wage and that overtime was unpaid.

Business Takeaway: While the proposed FLSA changes face an uncertain future, wage and hour lawsuits continue, with significant consequences for employers. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on how to avoid FLSA exposure.

New I-9 Form Issued

On July 17, 2017, the U.S. Citizenship and Immigration Services (USCIS) issued a new I-9 form. Use of this form will be mandatory beginning September 18, 2017. Updated List C documents are among changes to the form.

Sexual Orientation - Discrimination is Against the Law, or is It?

Last week, the U.S. Justice Department took the legal position in a pending case that sexual orientation is not protected under Title VII (i.e., not a basis for claiming discrimination or harassment). The President also tweeted that transgender individuals will no longer be allowed to serve in the military. While the effect of these public pronouncements remains unclear, they do (1) mark a considerable departure from existing law and legal interpretations; and (2) remind us that Title VII does not explicitly speak to sexual orientation. It bears noting that this new position is contrary to established EEOC policy and recent court rulings. Finally, many state laws (including Wisconsin) include sexual orientation as a prohibited basis of discrimination.

Legislative Update

Bill Ends Teen Work Permit Requirement

On June 21, 2017, Governor Scott Walker signed a bill removing the work permit requirement for 16- and 17-year-olds in Wisconsin. (See 2Q Legal Alert for background.) Supporters of the bill hope it will remove barriers of entry to the workforce for those in the affected age group. Over 70,000 such permits were issued last year.

Wisconsin Considers Eliminating Personal Property Tax for Business

On June 1, 2017, Wisconsin lawmakers held a hearing on the business personal property tax, and business owners from across the state attended to air their complaints. Many business owners hope to eliminate personal property tax from the 2017-2019 state budget, claiming that the tax deters them from reinvesting in their businesses. For example, Festival Foods claimed a 233% increase in personal property tax after remodeling a Fort Atkinson store.

Business Takeaway: This issue seems to be attracting more and more attention from Wisconsin business owners. Has the property tax hindered your business in the past, or affected future plans?

Earned Sick Leave Ordinance Takes Effect in Cook County

Cook County, Illinois Ordinance No. 16-4229, essentially providing employees with five days of paid sick leave per year, took effect on July 1, 2017. Some important information on the ordinance:

  • Covered Employee means any Employee who, in any particular two-week period, performs at least two hours of work for an Employer within Cook County.
  • Any Covered Employee who works at least 80 hours for an Employer within any 120-day period is eligible for Earned Sick Leave.

The Cook County Ordinance, approved in October 2016, follows a similar paid sick leave amendment to the Chicago Minimum Wage Ordinance, approved in June 2016. Accordingly, the new ordinance should be seen as an effort to resolve anticipated incongruities between city and county law as much as a grant of paid sick leave.

Business Takeaway: Be mindful of local ordinances and laws taking effect near you, as employees, potential employees, and businesses in neighboring communities, the county, the state, or even neighboring states may be affected. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information on paid leave.

Workplace Trends

Finding the Right Candidate in a Tight Job Market

The current job market poses significant challenges for employers looking to hire for the long run. First, in May 2017, the unemployment rate dropped to 4.3% (the lowest rate in several years). Second, young workers are prone to job-hopping, often spending less than one year with a company before applying elsewhere. Finally, applicants and employers alike have gravitated to online resources both for ease of use and for the broad search capabilities they provide. But while online resources may be attractive, they have resulted in a shotgun approach by applicants (impersonal applications to mutiple employers). This forces employers to find the needle in a haystack of inflated credentials and unqualified candidates (just like the old days of sifting through piles of resumes). The more things change….

Business Takeaway: The tight job market means businesses must employ different strategies to identify and hire the best candidates. Online resources offer a tempting, convenient system to locate candidates, but relying exclusively on these tools (or using them incorrectly) can do more harm than good. Keep an eye out for generic, sweeping statements and business jargon. Look for candidates who specifically address your industry, business, and the posted position. Also keep in mind that any fabrication in a résumé, interview, etc., may be cause for non-consideration (in the hiring process) or termination (if already hired). Finally, be sure you know, and focus on, the key traits and skills sought and how you intend to assess them in the application, testing, and interview process. Contact Michael at 414-446-8800 or michael@goldsteinsc.com for more information on hiring processes.

Attracting Women in Historically Male-Dominated Industries

Various male-dominated industries are redoubling efforts to recruit women, including fields that are historically viewed as unwelcoming to women. This trend stems from various factors, including the number of retiring baby boomers as well as a reduced interest in the trades.

Whatever the reason, male-dominated industries have also implemented new policies and initiatives to attract new talent and combat prior perceptions. For example, the Iron Workers union now offers eight months of paid maternity leave. And, various American Trucking Association companies are adding benefits such as a 401(k) or a tuition reimbursement program.

Business Takeaway: This issue highlights two important trends—the increasing difficulty of staffing up for certain industries and the need for businesses to adjust hiring strategies to find and retain a new type of worker. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on implementing new recruitment and retention strategies.

Microchipping Your Employees

A Wisconsin company is in the news for plans to microchip (willing) employees. The company claims that the Radio-Frequency Identification devices would facilitate entry into the building, use of computers and purchase of food in the cafeteria or at vending machines. No surprise that this announcement has attracted worldwide attention and caused some controversy. On the one hand, Radio-Frequency Identification offers benefits including ease of access and speed of transactions. On the other, it raises a variety of questions regarding employee privacy rights. Stay tuned.

In the News

An Uber Big Problem

Uber has had a challenging year, with problems continuing to surface and scandals dogging the company. Following reports of Susan J. Fowler’s experiences with sexual harassment at the company, Uber terminated 20 employees. The Holder Report, the result of the former U.S. Attorney General's examination of Uber’s workplace practices, concludes that the company's business practices have backfired in many ways and must change.

The issues at Uber have encouraged other women working in Silicon Valley to speak out and to raise awareness of sexism in the industry. The result? The resignations of Uber CEO and co-founder Travis Kalanick as well as Binary Capital partner and co-founder Justin Caldbeck, among others. Researchers surveying women with a least ten years of experience found that approximately 60% of those employed in Silicon Valley have experienced sexual harassment and/or discrimination.

Business Takeaway: While these examples highlight some of the more extreme and widespread failures of corporate policy and human resources, they also show that even "progressive" companies can have poor workplace policies and harmful work environments. Any business—no matter how large, modern, or sophisticated—can lose big when such perceptions (whether real or imagined) take hold. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for more information on establishing and/or assessing workplace culture and implementing reporting procedures and related policies, protocols, and training.

Nasty Yelp Reviews Have Unintended Consequences

Yale Dean June Y. Chu was placed on leave, and subsequently left her position, after posting a series of controversial Yelp reviews. These reviews, including phrases such as "white trash" and "barely educated morons," were discovered by her students. When confronted about her actions, Dr. Chu initially claimed responsibility for two such posts, apologized in writing, and deleted her Yelp account. Her supervisor later discovered multiple additional posts ("enough to represent a more widespread pattern"), leading to her departure from Yale.

Business Takeaway: Employees have free speech rights, especially "off the clock." However, free speech does not mean free from consequences, and various online activities reflect poorly on your business. Make expectations clear with a strong workplace policy. Implement protocols for flagging such online activities and taking action if issues arise. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on social media policies and/or employees' off-the-clock activities.

Links of Note

Work Conflict and Resolution

It should come as no surprise that conflicts in the workplace can damage both work and personal relationships and that there is no one-size-fits-all approach to avoiding or resolving them. As to the negative effects of conflict, a recent Harvard Business Review article describes a study on how rudeness hinders collaboration and reduces overall performance. As to solutions, a study conducted by London Business School professors Gabrielle Adams and Ena Inesi demonstrated how empathy and forgiveness are the keys to resolving such disputes.

Learning on the Job

With the workplace changing more rapidly than ever, continuing education is also more important than ever. But how does one identify opportunities that add value to work? And how does one identify employees, and job candidates, who are eager to learn? This recent article offers some answers.

Problem Solved?

Business leaders pride themselves on being problem-solvers. However, a recent piece in the Harvard Business Review suggests that business leaders often fail to diagnose the actual issue at hand (in fact, misdiagnosing the problem up to 85% of the time). How do you measure up?

Step Away from the Smart Phone

A new report by University of Texas researchers found that, for many of us, simply being in the same room as a smart phone reduces our cognitive abilities. Interestingly, when the device was removed from the room (or was hidden), test subjects identified as "extremely dependent" on their smartphones performed as well as those less dependent on their smartphones.

Strangest Thing

The 27-Year Lawsuit

Twenty-seven years after a woman initially filed a sexual discrimination lawsuit against the Washington, D.C. Department of Corrections, the case remains unresolved. The case has been transferred between administrative agencies and the court system, including ten different judges, an eleven-year appeal, and a nine-year dispute over interest and calculations.

Business Takeaway: While this case is clearly an outlier, it reminds us that lawsuits can take on a life of their own. The inefficiencies and long-term costs posed by the legal process are important factors to consider when presented with a settlement offer, even if that settlement offer is less than satisfying.

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