Fourth Quarter 2014



In This Issue:

HR Practices

LinkedIn for Alternative References

In the News

Sony Pictures Computer Hack No Laughing Matter

Legislative Update

"White Collar" Exemption Regulations

Legal Update

Cuff v. Trans States Holdings, Inc.

Retaliation Claims

PPACA Open Enrollment

Social Security

The Strangest Thing We’ve Heard of Late

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 - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

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

Previous Issues

HR Practices

LinkedIn for Alternative References

Do you run a LinkedIn search on job applicants? Employers with LinkedIn Premium Accounts can identify people who worked at a prior company at the same time as the job applicant, and can then contact these people for reference purposes. While this does not guarantee that the person worked with the job applicant, or that the person is qualified to speak to the job applicant’s background, skill-set, etc., it does offer the opportunity to speak with references other than those provided by the job applicant him- or herself. This LinkedIn Premium feature has all the markings of a disruptive technology, similar to the new car service, Uber, which is bumping up against well-established municipal, social and other protocols relative to taxi service.

On a related note, a group of one-time job applicants recently initiated a class action suit against LinkedIn, contending that the information available through LinkedIn Premium is not necessarily accurate. Stay tuned.

Employer take-away: Unless and until plaintiffs prevail in this case, LinkedIn Premium provides a new and interesting technological tool in the hiring process.

In the News

Sony Pictures Computer Hack No Laughing Matter

Last week, a computer hacker exposed sensitive documents at Sony Pictures. Early reports tie the incident to North Korea, suggesting it may have been prompted by the soon-to-be-released comedy film “The Interview,” in which two journalists are tasked with assassinating North Korean leader Kim Jung Un. While the bulk of early reports focus on the international intrigue of it all, the workplace consequences are tremendous: access to over 47,000 employee social security numbers, contact information for various Hollywood stars, and employee compensation numbers.

Employer take-away: Do you have technological and other protections in place for sensitive employee information? What plans do you have ready in the event of a breach? How would you fare if, for example, your employee compensation numbers were made public?

Legislative Update

  • In February 2015, the United States Department of Labor will announce revisions to the “White Collar” exemption regulations. We have talked more than a few times in this space about the Exempt/Non-Exempt distinction. Exempt employees, typically higher-level employees (hence the "White Collar" reference), need not be paid minimum wage or overtime. But it’s not quite that simple. Business owners, including those of large, sophisticated companies, run into a variety of issues such as:
    • Assuming that the only issue is salary v. hourly and missing the fact that exempt employees must also meet one of five "duties" tests in order to qualify as Exempt.
    • Making the determination on job title alone, assuming, for example, that an "executive secretary" meets the "Administrative" exemption or a salesperson meets the "Outside Sales" exemption.
    • Having no records of hours worked by Exempt employees. Accordingly, when they discover that an Exempt employee is really Non-Exempt (usually via a wage claim, filed by the now-former employee), they have no records to establish that the employee did not work the overtime claimed.
    • Not knowing how to gracefully make the transition from Exempt to Non-Exempt - especially for employees who regularly work overtime. This opens up the possibility that employees will perceive that they were underpaid before the change. If not handled properly, it may also look and feel to employees like a demotion.

Employer take-away: Tis the season to audit your Exempt/Non-Exempt determinations. First, the start of a new year can be a good time to make the change for any employees that must be transitioned. Second, the issue will be getting a lot of press in coming months relative to the DOL revisions. At a minimum, employees will understand why you are taking up the issue at this time. For any questions regarding exemption issues, contact

Legal Update

  • In Cuff v. Trans States Holdings, Inc., Darren Cuff filed an FMLA claim against his employer, Trans States (which is loosely affiliated with United Airlines), and was ultimately awarded $50,000 in damages and $325,000 in attorneys’ fees. The issue in the case was whether Mr. Cuff was entitled to FMLA, or whether Trans States and United were so loosely affiliated, and Trans States so small, that Trans States employees do not qualify for FMLA.
  • Employer take-away:The first take-away in this case relates to how the FMLA comes into play with respect to joint-employers, particularly relative to two factors: (1) the manner in which the companies are related; and (2) how precisely the employee is employed, and portrayed, to others. The FMLA also authorizes the award of reasonable attorneys’ fees to the prevailing party. This is a rare exception to the American Rule (which mandates that each party pay their own fees and costs). In this case, it proved quite costly to the defendants.

  • A record 38,539 retaliation claims were filed in 2013, according to the Equal Employment Opportunity Commission. Retaliation claims include claims of demotion, termination, or the denial of a promotion based upon the employee’s prior complaint about race, gender or other types of discrimination in the workplace. This represents the eleventh year in a row that retaliation claims have grown, and the fifth year in a row that retaliation claims have outpaced claims for race, sex, and disability discrimination.
  • Employer take-away:A retaliation claim can be made by simply checking one additional box on the EEOC Charge form, or by an employee (or former employee) filing a new claim after discipline, demotion, or termination. In other words, it is pretty easy to do. Retaliation claims add cost and complexity to the handling of any other pending claims. That said, the filing of a discrimination claim cannot be allowed to insulate an employee from subsequent, bona fide discipline or discharge. Accordingly, contact counsel prior to disciplining or discharging an employee who has raised such issues.

  • We are now in the midst of the PPACA open enrollment period. That, coupled with an increase in individual penalties in 2015 (from $95 or 1% of income in 2014 to $325 or 2% of income in 2015), may result in an uptick in inquiries regarding company-provided health insurance. What are you seeing and experiencing? Contact and let us know.
  • Effective January 1, 2015, the maximum amount of earning subject to Social Security tax increases from $117,000 to $118,500.
  • Employer take-away: Check in with your accountant or payroll service to ensure they have made the change.

The Strangest Things We’ve Heard of Late

It has been almost 20 years since the Health Insurance Portability and Accountability Act (HIPAA) became law and, accordingly, most business owners (and especially those in the medical field) are ever mindful of patient privacy.

That’s what makes this recent news report so strange. A Tampa pharmacy printed flyers on the back of patient records – and distributed them to area businesses. Apparently, as a sort of “green” initiative, the patient records were set aside for internal use. The records were subsequently, and mistakenly, placed in the printer when the flyers were printed.

Employer take-away: Have protocols in place for the destruction of any and all documentation containing "individually identifiable health information." Do not, under any circumstances, use such documentation for any other purposes (including internal purposes).

Upcoming Events


Legislative & Legal Update

BHRA - Janesville


Day on the Hill

WI SHRM - Madison


Legislative & Legal Update

SHRM - Sheboygan County

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