Third Quarter 2019

 

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In This Issue:

Firm News

Quick Hits

Falling Workers’ Compensation Insurance Rates

The Continuing Saga of the I-9 Form

Overtime Rule – Changes are Coming

Marijuana Legalization and the Workplace – It's High Time to Revisit Drug Testing Policies

Regulatory Update

Contractors or Employees? The Unsettled Issue of Workers in the Gig Economy

Legal Update

Disability Discrimination and Reasonable Accommodation

Supreme Court Weighs in on Arbitration Agreements

The High Cost of Harassment & Retaliation

Legislative Update

Employment Credit Checks May Become a Thing of the Past

New Legislation May Significantly Alter Landscape of Employee Wage Claims

Workplace Trends

Americans are Stressed Out

Technology and the Workplace – Do Your Employees Have the Skills They Need?

Links of Note

Strengths & Weaknesses

Personal Bias and the Hiring Process

Strangest Thing We've Heard of Late

NFL Running Backs – Taking One for the Team?

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

Firm News

We hope that you enjoyed your summer!

We would also like to introduce the newest members of our team, Attorneys Corey Triggs and Andrew Otto. Corey is a graduate of the University of Wisconsin Law School and previously worked as an officer at the State of Wisconsin Equal Rights Division. Andrew is a graduate of Marquette University Law School. His previous legal experience includes business succession planning and estate matters.

Welcome, Corey and Andrew!

Also, a friendly reminder that we have considerable work/meeting space at our office (including a conference room that comfortably seats 10+ people). Please reach out to Jill, our office manager, at 414-446-8800 or jill@goldsteinsc.com should you need, for example, space for an offsite meeting, or a place to park yourself or make calls between appointments downtown.

Quick Hits

Falling Workers’ Compensation Insurance Rates

Workers’ Compensation premiums have fallen over the past three years, and the Wisconsin Compensation Rating Bureau has proposed another decrease of over 8%. If approved, the new rate could be effective as early as October 1, 2019.

The Continuing Saga of the I-9 Form

The current version of Form I-9, which expired on August 31, 2019, will likely be extended with minimal revisions. As you may recall from years past, this is not the first time the form has expired. Continue to use this version until a revised form is made available.

We mentioned in our last newsletter that the Social Security Administration (“SSA”) has resumed its practice of distributing Employer Correction Request Notices (“no-match letters”). While over 500,000 employers have already received no-match letters, the SSA has indicated that another round of notices will be sent this fall.

Overtime Rule – Changes are Coming

In the wake of Labor Secretary Alexander Acosta’s recent resignation, the Department of Labor (“DOL”) is renewing efforts to revise the Fair Labor Standards Act overtime rule by the end of 2019. The DOL is currently reviewing the comments that were submitted in response to rule changes proposed in March. Proposed changes include an increase of the white-collar exemption salary threshold from $23,660 to $35,308. The DOL has also proposed a revision to the “regular rate” of pay calculation to explicitly exclude certain benefits (e.g., wellness benefits, tuition reimbursement). While a less drastic change than the Obama-era proposal rule, this will affect employers throughout the country. How would the proposed rule affect your workforce?

Marijuana Legalization and the Workplace – It's High Time to Revisit Drug Testing Policies

Illinois’ marijuana legalization law takes effect January 1, 2020. Several midwestern states now permit recreational use. A few states have considered, or have already implemented, protections for medical and recreational marijuana users—including protections related to hiring and employment. More and more workplaces are considering abandoning marijuana testing altogether. For now, keep in mind that most employers still have considerable discretion regarding how to handle marijuana use by employees. This is especially so for jobs involving, for example, the use of heavy machinery, driving, or customer contact.

Business Takeaway: It is time to revisit how to handle employee and applicant drug testing. What do you do and why?

Regulatory Update

Contractors or Employees? The Unsettled Issue of Workers in the Gig Economy

Gig-economy companies (e.g., Uber) continue to face questions about the classification of their workers. Specifically, are they contractors or employees? In April, the DOL weighed in on an unnamed company whose workers clean residences—concluding that the workers were contractors, not employees. As a result, the company is not bound by the minimum wage and overtime regulations (and a variety of other rules) reserved for employees. The decision marks a shift from Obama-era guidance (gig workers are likely employees, not contractors) and indicates that many companies could be impacted by the decision. In other words, your competitor’s overhead may have just gone down. How might you respond?

Meanwhile in Wisconsin, the Evers administration has created a task force to fight payroll fraud, predominantly targeting businesses that misclassify employees as independent contractors to avoid employee-related expenses. According to the Wisconsin Department of Workforce Development, over 8,000 employees were misclassified last year, translating to over $1 million in unemployment insurance taxes and penalties.

Business Takeaway: The gig economy may represent a new way to work, but the regulations governing such businesses are still a work-in-progress. Companies like Uber and Lyft have encountered considerable litigation regarding the classification of their employees. While the DOL opinion above suggests a different approach than the past, keep in mind that workers must meet specific criteria to be classified as independent contractors and that misclassification litigation can be both costly and time-consuming. Contact Adam at adam@goldsteinsc.com or 414-446-8800 for more information on employment classification.

Legal Update

Disability Discrimination and Reasonable Accommodation

The U.S. Equal Employment Opportunity Commission (“EEOC”) has sued Rogers Behavior Health (Oconomowoc, Wisconsin) for rejecting a qualified candidate whom it regarded as disabled. Rogers allegedly rescinded a job offer after the applicant disclosed medical impairments and a related prescription, despite a physician’s confirmation that the applicant could work as an intake specialist. Meanwhile, Illinois Action for Children (“IAFC”) agreed to pay a former employee $60,000 following a disability discrimination lawsuit filed by the EEOC. In that case, IAFC terminated an employee on leave (receiving treatment for breast cancer) who required further treatment and, as a result, additional leave.

Business Takeaway: The Rogers lawsuit may demonstrate how employers can, even unwittingly, deny the legal protections for applicants and employees. The IAFC matter speaks to an issue on the opposite end of the employment cycle—the regulations and issues associated with workplace accommodations. Both issues highlight the need for businesses to carefully evaluate applicants and employees, and the accommodations they might require. Do you have any questions about what might be considered a reasonable accommodation?

The High Cost of Harassment & Retaliation

Two recent sexual harassment cases saw Chicago companies Lakeshore Sport and Fitness and Alliance Ground International settle with individuals for $45,000 and $135,000, respectively. While the precise circumstances of the two cases differ, there are some striking similarities between the two. For example, the companies failed to adequately investigate sexual harassment claims (despite receiving prior complaints about the harassers) and the companies each terminated the employees who submitted the complaints.

Business Takeaway: While the #metoo movement and other initiatives have certainly raised awareness for these and related matters, allegations of ongoing bad behavior persist. Businesses must treat any claims of harassment seriously—including an internal (or external/third-party) investigation of the facts. Mishandling such claims could damage company culture, reinforce negative behaviors, and cost the company more than just a large settlement sum. Contact Corey at 414-446-8800 or corey@goldsteinsc.com for more information on internal investigations and harassment in the workplace.

Legislative Update

Employment Credit Checks May Become a Thing of the Past

In July, proposed legislation that would prohibit employers from asking questions about applicants’ financial history or using credit reports for employment decisions passed the House Committee on Financial Services. Some states and localities have already implemented such restrictions. Proponents of the bill suggest that using the reports can be discriminatory and that credit history is unrelated to predicting job performance. Those opposed cite the use of credit reports in analyzing applicants’ risk and decision-making in relation to specific job roles (e.g., security, finance).

Business Takeaway: Do you consider an applicant’s financial history or credit report in your hiring process? Such initiatives have been trending for some time. If this legislation does not pass, we expect it to be brought back in the future. Contact Julia at 414-446-8800 or julia@goldsteinsc.com for more information.

New Legislation May Significantly Alter Landscape of Employee Wage Claims

The Wisconsin legislature will consider new legislation that may drastically affect employee wage claims. First, AB 40 and SB 40 would increase the statute of limitations for wage claims from two years to four years. Further, the legislation would allow an individual to file not just on his or her own behalf, but also on behalf of any similarly situated employees.

Business Takeaway: These changes, along with changes to payment of increased wages and interest, could drastically affect wage claims in Wisconsin. Due to the fees and damages at play, wage and hour litigation can already snowball rapidly. The proposed changes (particularly allowing claimants to file for others) would raise the stakes (and costs) of such litigation further. Contact Andrew at 414-446-8800 or andrew@goldsteinsc.com if you have any questions about employee wage claims.

Workplace Trends

Americans are Stressed Out

The 2019 Global Emotions Report—a survey of over 150,000 people around the world—suggests that Americans are some of the most stressed people in the world. This correlates with patterns observed in prior years, including a general rise in American stress levels, anger, and similar emotions. On the other hand, Americans reported, on average, more positive experiences than the rest of the world, suggesting a regular and dramatic swing of highs and lows. Anger—on a global level—is also on the rise.

Business Takeaway: These findings reflect a variety of factors; not all of which relate to the workplace. That said, it is important to recognize how the study results factor into your workforce. What are you seeing? How have you addressed increased stress or anger in the workplace?

Technology and the Workplace – Do Your Employees Have the Skills They Need?

Amazon announced that it is retraining about 100,000 employees—an initiative costing the company $700 million. The training, done through internal Amazon programs, will focus on STEM skills and new technologies associated with Amazon’s growing needs and will encompass traditionally “non-technical” roles. Amazon’s initiative calls into question how other businesses and industries might address technology-based change—and what colleges and universities are doing in this respect too.

Business Takeaway: Your business may not have the same resources as Amazon, but you may face a similar shift in pertinent job skills. Assess what aspects of your industry or what roles within your company are most susceptible to changes. While some companies may offer training programs or education-based benefits, such options are not available to everyone. Contact Julia at 414-446-8800 or julia@goldsteinsc.com regarding how technology is affecting your workforce needs, and how you might adapt.

Links of Note

Strengths & Weaknesses

After years of being told to play to our strengths, Adam Grant offers an analysis of when doing so creates a different problem. Those who predominantly focus on improving weaknesses will be left with fewer chances to do whatever it is they do best. On the other hand, those who focus too much on their strengths quickly become one-dimensional (and tend to “overdo it”), as their weaknesses stay as weaknesses. Grant posits that “true power depends on knowing when and how to use those strengths.”

Personal Bias and the Hiring Process

A recent piece by the Harvard Business Review suggests that personal biases are inevitable, but they can be better understood—particularly as related to the hiring process. Perhaps the most common bias is the affinity bias, i.e., a favorable opinion of someone similar to yourself. Author Ruchika Tulshyan offers a variety of strategies to confront personal biases—from self-educating to restructuring your approach to analyzing job candidates.

Strangest Thing We've Heard of Late

NFL Running Backs – Taking One for the Team?

The International Brotherhood of Professional Running Backs filed a petition with the National Labor Relations Board. The petition seeks to separate NFL running backs from the NFL Players Association and to create their own union. The desire for a separate union results from running backs’ comparatively short average professional career, elevated risk of injury, and low salary (behind only long snappers and fullbacks). University of Wisconsin alum Melvin Gordon (currently holding out) is a good example of the issue.