Fourth Quarter 2012



In This Issue:

Firm News

In the News

Variations on a theme - Hiring Issues

“Free speech” meets “silly season.”

You don’t have to be a Yahoo to be fooled by resume fraud

The I-9 dilemma: How to verify employment eligibility without discriminating.

Trucking firms find hair analysis more reliable for drug testing purposes.

Employment Trends

Work-life balance a top priority in today’s workforce.

If you can’t offer work-life balance, consider these “total rewards” options.

Litigation Update

Recent Verdicts and Settlements

Starbucks wins “bling” case on appeal.

Fired for pregnancy.

Refusal to sign receipt of disciplinary notice leads to termination.

Helping a known illegal immigrant set up business is…well…illegal.

Aurora Health Care sued for disability discrimination.

WalMart pays $5.3 million to settle misclassification claim.

“Unequal” severance package can constitute discrimination.

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 - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

(Wisconsin Lawyer - Vol. 81,
No. 2, February 2008)

Previous Issues

Firm News

Mark J. Goldstein S.C. is rapidly approaching its fifth anniversary, and we are celebrating by moving to larger quarters. Effective November 1, 2012, our address will be:

8989 North Port Washington Road
Suite 207
Milwaukee, Wisconsin 53217

The new office is just up the street, and our phone and e-mail addresses remain the same. Please feel free to stop by should you be in the neighborhood.

In the News

Variations on a Theme - Hiring Issues

“Free speech” meets “silly season.” The upcoming election has everyone on edge. An 81-year- old school bus driver, with no prior disciplinary record over 20 years of service to the company, was terminated following a confrontation with a middle school-aged child on her bus. Apparently, this was not the first confrontation between the student and the bus driver. On one prior occasion, the student was one of several chanting “Romney, Romney” in the back of the bus, prompting a scolding by the bus driver. In the incident prompting termination, the student told the bus driver that he believed Obama was “pro-abortion.” The bus driver responded: ““Well, maybe your mother should have chosen an abortion for you!” By any objective measure, that probably crossed the line. It must have also made for an interesting night at the dinner table for the young boy’s family.

You don’t have to be a Yahoo to be fooled by resume fraud. Internet giant, Yahoo, made the news this spring when it was discovered that its recently hired CEO did not have the computer science degree he claimed. Apparently Yahoo assumed the credentials of a high-profile, executive-level candidate were what he said they were.

On the other side of the equation, some employers are making news for requiring applicants to turn over their Facebook passwords (or to give a company representative a tour of their Facebook page) as part of the hiring process. This presents a whole different set of issues, addressed in prior newsletters and, no doubt, future newsletters as well.

A background check is a company’s best defense against getting something more (or less) than it bargained for when hiring. Background checks must meet all state and federal laws and be followed consistently. Other best practices include:

  • Inform job applicants that they will be subject to a background check prior to hiring
  • Have job applicants sign an authorization form giving you permission to contact past employers and others
  • Give responsibility for conducting background checks to someone who is outside of the hiring process
  • Contact individuals other than those listed as references (Advanced Search on LinkedIn can serve as a good resource for this)
  • Seek only information that is job-related and necessary to making the hiring decision (note the Aurora case below)
  • Document the results of all background checks

Employer takeaway: Every company should have a policy in place for conducting background checks. Call 414-446-8800 or contact for a complimentary review of your hiring policies.

The I-9 dilemma: How to verify employment eligibility without discriminating. With numerous companies making headlines for the hiring of illegal immigrants – and the penalties that follow – it is easy to understand how others have gone too far in the other direction and, ironically, face equally harsh penalties for discrimination. The key to avoiding either set of issues is to understand the requirements of the Immigration Reform and Control Act (IRCA) relative to documentation. Companies have run afoul of the law by “over-documenting,” that is to say:

  • Requesting more documentation than required to complete Form I-9
  • Rejecting valid documents and requesting specific preferred documents
  • Requesting an employee to present work authorization documents more often than required

You can ensure you do not step over the line into over-documentation by following a relatively simple set of guidelines when hiring:

  • Provide a copy of the List of Acceptable Documents to new hires before their first day of employment so that they will bring appropriate documentation within the first three days of employment
  • Never require any more documentation than Form I-9 requires (i.e., one original document from List A confirming both employment eligibility and identity OR one original document from List B establishing identity and one original document from List C establishing employment eligibility)
  • Verify that the original documents provided by the employee are on the current Form I-9 List of Acceptable Documents
  • Be timely in re-verifying work authorization that is subject to expiration, but never demand re-verification from employees if authorization is not expired or subject to expiration
  • Examine documentation to ensure it is unexpired and held by the individual presenting it; moreover, determine if there are any features that would cause a reasonable person to doubt either the documentation's authenticity or its relation to the individual presenting it

Trucking firms find hair analysis more reliable for drug testing purposes. Wisconsin’s Schneider National is one of a handful of trucking firms now requiring job applicants to submit a hair sample for drug testing. Schneider believes that hair samples provide a more reliable picture of drug use than urine (as traces of drugs will remain in hair for months). Hair testing also resolves the issue of cheaters who buy synthetic urine, send someone in to take the test for them, or abstain from drug use just long enough to give the appearance of being drug-free.

Congress recently ordered the Transportation Department to establish a national database of truckers’ positive test results for drugs and alcohol. As it stands now though, only urine test results will be included in the database because urine testing is the existing standard. The American Trucking Association, along with several companies that use hair testing, support the inclusion of hair test results in the national database. The Wisconsin Labor and Industry Review Commission, the administrator of Unemployment Insurance, Worker’s Compensation, and Equal Rights, does not yet acknowledge hair testing either. Stay tuned.

Employment Trends

Work-life balance a top priority in today’s workforce. The work-life balance discussion has been going for some time but has recently taken a new twist. The most recent chapter on the subject is based on three realizations: (1) it is not only an issue for young mothers, (2) today’s most talented employees value work-life balance, and (3) it can actually increase productivity. As to this third point, academic studies and other evidence suggest there are a variety of benefits (e.g., employee productivity, employee wellness, employee creativity, employee morale) that come from employees having greater control over their schedules as well as freedom and flexibility. Consider the following:

If you can’t offer work-life balance, consider these “total rewards” options. You can always count on Silicon Valley to experiment with new employee incentives (sort of like watching the fashion show and wondering if/how the newest fashions will ever make it to your department store). The latest experiments include housecleaning, take-home dinners, personal trainers, and back-up child or elder care.

Litigation Update

New Cases and Recent Verdicts and Settlements

Starbucks wins “bling” case on appeal. An appeals court recently overturned a ruling by the National Labor Relations Board (NLRB) that allowed Starbucks employees to wear multiple pro-union buttons while at work. Starbucks attempted to curb the behavior with a “one button” rule, and the union responded by filing an unfair labor practices charge with the NLRB. The NLRB found for the union, but the appeals court reversed the decision on the grounds that employees could show their support for the union via their one button. The court further found that Starbucks’ dress code struck a proper balance between requiring a neat and clean appearance and allowing employees the opportunity to personalize their appearance a bit.

Fired for pregnancy. The EEOC is suing University School of Milwaukee (USM), claiming it fired a teacher because she was pregnant. Hired in August of 2011 as a part-time, after-school arts and crafts teacher, she was fired just three months later (and just weeks after it became known that she was pregnant). The lawsuit seeks an injunction, back pay with interest, and other damages. Stay tuned.

Refusal to sign receipt of disciplinary notice leads to termination. An employee was issued a written warning for poor performance and asked to sign the following acknowledgement: "I have read and received a copy of this form." The employee refused. When informed that the signature only indicated receipt of the form, not agreement with its conclusions, he still refused. He was then told that his refusal to sign constituted insubordination and grounds for discharge. He still refused and was fired. As an aside, the form also contained an area for "employee's statement" of any disagreement.

The employee was denied unemployment insurance. In essence, the court found that the employee voluntarily chose to terminate his employment when he turned a minor warning into a major refusal to follow a clear order. See: Kierstead v. LIRC (Wis. Ct. App. 2012).

Employer take-away: Insubordination is one of the most misunderstood concepts in the universe of discipline/discharge issues. Generally speaking, it requires defiance in the face of a direct order and continued defiance after being advised of the ramifications (i.e., termination). Notice how the court turned this act of insubordination into a “quit,” as opposed to misconduct, and how the employer had all its “ducks in a row” such that the court could make such a ruling.

Helping a known illegal immigrant set up business is…well…illegal. A bank manager lost her job when it was discovered she used her position to help her husband, an illegal immigrant, set up a business account and obtain a tax ID number. The bank manager sued, claiming that being fired for her “association with” a person of another nationality constituted discrimination based on national origin. The court dismissed her case, noting that “illegal alienage” (or association with someone of “illegal alienage”) is not the same as “national origin,” and not a protected classification under the law. See: Cortezano v. Salin Bank & Trust Co. (7th Cir. 2012)

Aurora Health Care sued for disability discrimination. The EEOC is suing Aurora Health Care for rescinding job offers to two applicants after learning of their disabilities. According to the EEOC, the two employees (one with multiple sclerosis and the other with carpal tunnel) were offered jobs with Aurora conditioned on medical examinations. Both claimed they could perform the essential functions of the jobs and disclosed their health conditions during these post-offer, pre-employment medical examinations.

The lawsuit alleges that Aurora withdrew the job offers because, as a health care provider, it had access to applicants’ medical records (and accessed these records in the hiring process). Aurora’s position is that it acted not based on their health conditions but on their failure to disclose certain information (information it discovered via their medical records). The EEOC is seeking an injunction prohibiting Aurora from reviewing job applicants' medical records and seeking back pay and compensatory and punitive damages for the two employees. Stay tuned.

WalMart pays $5.3 million to settle misclassification claim. According to the Department of Labor, more than 4,500 WalMart vision center managers and asset protection coordinators were classified as Salaried Exempt employees when they should have been classified as Hourly Non-Exempt employees. The settlement includes $4.83 million for unpaid overtime and $463,815 in penalties.

Employer take-away: The largest, most sophisticated employers continue to be hit with huge lawsuits, judgments, and settlements relative to misclassification issues. How many employees do you consider exempt (from overtime and minimum wage requirements)? Call 414-446-8800 or contact for a complimentary review of this issue.

“Unequal” severance package can constitute discrimination. A female HR manager’s position was eliminated after 25 years of service, at which time she was offered a severance package that included three months' pay and benefits. The employee objected, noting that male managers received severance packages with much larger payouts. She ultimately rejected the offer and was laid off without any severance.

While her claim of discrimination was dismissed by a lower court, an appeals court reversed the decision, stating “any benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free … simply not to provide the benefit at all.” Severance packages are “part and parcel of the employment relationship,” and the fact that employers are under no obligation to furnish severance packages does not permit offering such packages on a discriminatory basis.

Employer take-away: The law does not require severance for departing employees or equality of all severance offers. This case serves as a reminder that there must be some objective basis justifying a comparatively low (or high) offer (e.g., position, years of service, etc.).

The Strangest Things We’ve Heard of Late

You get what you pay for, and sometimes much less. An 81-year old amateur artist in Spain, Cecilia Gimenez, was concerned about the deteriorating condition of a famed fresco of Jesus in her church - to the point that she volunteered to restore it. Although well-intentioned, Ms. Gimenez’s skill in art restoration was, well, lacking. You be the judge.

If that weren’t enough, the story takes a strange twist. The fresco has now taken on cult status - so much so that the Church earned $2,000 euros the first four days it was on display. Now Ms. Gimenez is suing for a share of the profits. Meanwhile, the original artist’s descendants are contemplating a suit against Gimenez for destroying the fresco.

Employer take-away: As employers contemplate alternate avenues for getting the job done (e.g., unpaid internships), this case serves as a reminder of the importance of vetting, giving instructions, and boundary-setting.

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.

Flu Shot Policy

Have you instituted a policy mandating flu shots? Call 414-446-8800 or contact for sample language.

Upcoming Events


Is That Legal? Issues Involving Social Media


Legal Update

For more information on upcoming events, click here.