Fourth Quarter 2013

 

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In This Issue:

In the News

Family and Medical Leave Act (FMLA) Audits

PPACA-Recent Developments

Employer Penalty and Measurement Periods

SHOP Exchange Effective Date Extended

Innovations

Yahoo and Microsoft Take Different Approaches to ‘Stack Ranking”

Legislative and Regulatory Update

Federal: Workplace Flexibility Legislation Pending Before the House and Senate

State: New Unemployment Legislation

Local: Madison City Council Prohibits Discrimination Against Unemployed

Litigation Update

Epic Lawsuit

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

Family and Medical Leave Act (FMLA) Audits

The United States Department of Labor recently announced its intention to increase the number of on-site investigations of employers relative to FMLA compliance. Common violations include: (1) refusing to authorize FMLA leave for an eligible employee; (2) discouraging an eligible employee from using FMLA leave; (3) manipulating an employee’s work hours so that he or she would not qualify for FMLA; (4) discriminating against an employee relative to his or her request for FMLA leave; (5) counting FMLA leave under the company’s no-fault attendance policy.

Employer take-away: If DOL auditors arrived on your doorstep today, are you confident that your FMLA policy, and the manner in which you administer FMLA, could pass an audit? Contact Kris (414-446-8800, kris@goldsteinsc.com) with any questions.

PPACA - Recent Developments

Employer Penalty and Measurement Periods

On July 2, 2013, the federal government announced that the effective date for the PPACA employer penalty would be extended to January 1, 2015 (from January 1, 2014). Business owners, collectively, breathed a sigh of relief. They would be able to watch other provisions of the PPACA play out before having to make their own “pay or play” decisions.

In the months since, most of the talk has been about either (1) the disastrous roll-out of the Health Insurance Marketplace/Exchange; or (2) the unexpected cancellation of some individual coverage.

What should not be lost is that, with a January 1, 2015 effective date for the employer penalty, the “look-back period” for calculating FTEs may begin as soon as January 1, 2014. This means that staffing decisions made in the next few months (or even decisions regarding the “look-back period” itself) may have a real effect on your potential PPACA penalty (positive or negative) come January 1, 2015. See IRS Notice 2012-58. Accordingly, knowing precisely where you want to go with respect to PPACA is a decision that should be made sooner rather than later, and long before January 1, 2015. Contact Kris (414-446-8800, kris@goldsteinsc.com) with any questions.

SHOP Exchange Effective Date Extended

On November 26, 2013, the federal government announced a one-year delay (to November 2014) of the federal SHOP Exchange. SHOP exchanges are intended to give small businesses the same “menu” of options that the Health Insurance Marketplace/Exchange provides to individuals and, in doing so, encourage small businesses to offer healthcare coverage choices to their employees. For more information, see this Politico article.

Innovations

Yahoo and Microsoft Take Different Approaches to ‘Stack Ranking”

On November 12, Yahoo announced its intention to adopt “stack ranking” – a bell curve-type employee grading system in which employees are placed into various “stacks” (from high performers to those subject to dismissal). The same day, Microsoft announced that it was abandoning a similar system. Proponents of “stack ranking” suggest that it creates a more objective, organized assessment of one’s workforce. Detractors contend that it unnecessarily pits employees against one another (as a fixed percentage of employees must fill out the lowest "stack”). Read more in this Wall Street Journal article. See analysis of the issue by Jack Welch (who implemented a similar program at GE).

Employer take-away: The core question relates to how the program is presented and administered. Do you have a sense of your top, and “lesser,” performers? How objective is your evaluation, and what is your plan for “lesser” performers – training, performance improvement plan, other?

Legislative & Regulatory Update

Federal: Workplace Flexibility Legislation Pending Before the House and Senate

In May 2013, the United States House of Representatives passed The Working Families Flexibility Act (HR 1406). Last month, the United States Senate took up a companion bill (S 1626), which is presently pending in committee. This proposed legislation provides employers the option of offering paid time off (at time and a half) instead of overtime pay and, if an employer offers such a program, gives employees the choice between the two options. The proposed legislation would also allow employees to bank compensatory time. Stay tuned to see if the Senate bill makes it out of committee and to the floor for a vote.

State: New Unemployment Legislation

This summer, the Wisconsin State Legislature enacted a series of changes to Wisconsin unemployment law, effective January 5, 2014. Highlights include:

  • The definition of “misconduct.” You may well be aware of the “misconduct” standard, in which case a former employee does not immediately qualify for UI benefits. If so, you are also well aware that the “misconduct” standard is historically harder to satisfy than it would seem. The new statute now includes a punch list of items constituting “misconduct,” including absenteeism, suggesting that the “misconduct” standard may now be easier to satisfy.
  • A new “substantial fault” standard has been added. “Substantial fault” is defined as “those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee's employer.” (Sec. 108.04(5g), Wis. Stats). In the event of a finding of “substantial fault,” the former employee is ineligible to receive benefits just the same as if found guilty of misconduct.
  • If an employee quits, UI benefits are reduced and conditional (relative to whether the quit was justifiable). The list of “quit exceptions” has been cut in half, and the remaining exceptions have been narrowed.
  • Work search requirements have increased for those receiving UI benefits.
  • UI benefits have been sharply reduced relative to the drop in the number of unemployed in Wisconsin. Federal UI benefits expire December 28, 2013.

Employer take-away: Employers have been watching unemployment insurance claims and liability more closely than ever. These legislative developments may be welcome news but still require that you understand the precise provisions such that you can make good decisions about when and how to challenge a claim. Contact Kris (414-446-8800, kris@goldsteinsc.com) with any questions.

Local: Madison City Council Prohibits Discrimination Against Unemployed

Just last week, the Madison City Council enacted an ordinance barring discrimination against the unemployed. Madison joins New York City in taking such a step, and only time will tell whether and how it is enforced.

Employer take-away: This legislation serves as a reminder that while our focus in labor and employment law is almost always on federal and state law, there are times when local legislation comes into play.

Litigation Update

Epic Lawsuit

Madison-based Epic Systems has been hit with an FLSA lawsuit. The suit, which may ultimately be certified as a class or collective action, alleges that Quality Assurance employees (potentially over 1,000 in number) were non-exempt employees and regularly required to work over 40 hours per week without receiving overtime pay. See the precise allegations here.

Employer take-away: These suits are particularly pernicious, first because of the potential exposure (damages x 2, plus actual attorney’s fees and costs) and also because of the potential for class or collective treatment (bringing in dozens, hundreds, or, in this case, over a thousand potential plaintiffs). This case is also evidence that it is not just the small, unsophisticated employers who get caught up with such allegations.

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

1/8/14

Legal Update

Quality Advocates (Jackson Community Center)


1/22/14

PPACA Update

Milwaukee Bar Association


1/23/14

Lessons From a Top Workplace

WASB State Convention


3/20/14

Legislative & Legal Update

SRKA


For more information on upcoming events, click here.