Dempsey Law Blog Oshkosh, Wisconsin full service law firm with attorneys specializing in Estate Planning, Employment Law, Business Law, Tax Law and Litigation Wed, 22 Nov 2017 09:09:29 +0000 Joomla! - Open Source Content Management en-gb The Outcome of the Presidential Election will Determine the Breadth of the Overtime Rule


In 2014, President Obama tasked the Secretary of Labor to make changes to the overtime regulations in the Fair Labor Standards Act (FLSA). The goal was to align the rule with the original intent behind the FLSA and to make the rule easier for employers and employees to understand and apply. The final rule will become effective on December 1, 2016. The rule will raise the salary threshold to $47,476, and automatically increase the threshold every three years.


Small businesses are facing concerns for what might happen to their employees come December 1, 2016. Many small restaurants and shops will not have the ability to raise entry-level manager salaries above the new threshold or to pay them overtime. Small businesses have very few options when it comes to offsetting heightened costs. This could lead to cutting jobs or hiring lower-skilled workers. Small businesses will also have higher costs when the Overtime Rule comes into play since they will need to designate resources to carefully monitor the hours employees work.

In addition to the heightened costs, current managers may lose some of the advantages they currently enjoy, such as flexible schedules, benefits, and promotions. Not to mention, once the businesses raise the threshold for this level of employees, it may cause a domino effect of pressure for raises farther up in the business hierarchy.


The outcome of the presidential election could have a strong impact on the Overtime Rule.

The Republican platform has not specifically addressed the Overtime Rule. However, Republican presidential candidate Donald Trump told an online news outlet on August 12 that he favors small-business exemption from the rule. “We have to address the issues of over-taxation and over-regulation and the lack of access to credit markets to get our small business owners thriving again," Trump said. “Rolling back the overtime regulation is just one example of the many regulations that need to be addressed to do that. We would love to see a delay or a carve-out of sorts for our small business owners." Vice president of the Economic Policy Institute, Ross Eisenbrey, believes this exemption would “deny overtime protection to half the U.S. workforce…” This strikes Eisenbery as a “…bad thing to do.” However, Jack Mozolom, media director for the National Federation of Independent Business (NFIB) disagreed, stating that he believes Trump “acknowledges the impact of the rule on small businesses.”

On the opposite end, the Democratic 2016 platform has spoken out, saying that “We will defend President Obama’s overtime rule, which protects millions of workers by paying them fairly for their hard work.” Similarly, Democratic presidential candidate Hillary Clinton threw her support behind the Overtime Rule as soon as it was released, stating “I applaud President Obama and Secretary of Labor Perez for these overtime rules, which will lift up workers nationwide and help get incomes rising again for working families.


The anticipated enforcement of the Overtime Rule that is set to begin on December 1, 2016, may or may not have as strong of an effect as President Obama had intended depending on the winner of the 2016 presidential election. If Hillary Clinton wins, it is likely the Overtime Rule will be just as impactful as President Obama had intended, and will have a substantial impact on small business. If Donald Trump wins, the outcome is much more uncertain, but there may be some chance of him pushing for a small business exemption, favoring small employers, but negatively impacting employees by denying them overtime protection.

For more information about this alert or another employment law topic please contact Attorney Peter Culp with the Dempsey Law Firm.

]]> (Jeanna Rasmussen) Employment Law Fri, 04 Nov 2016 02:33:52 +0000
U.S. Supreme Court Adopts Narrow Definition Of "Supervisor"

Recently the United States Supreme Court narrowed the definition of "supervisor" for employment-related claims under Title VII of the Civil Rights Act of 1964, as amended.  The Court's 5-4 decision in Vance v. Ball State University resolves the inconsistency among jurisdictions as to how much authority an employee must exercise to be considered a "supervisor."


Facts and Law


The case arose when an employee sued her employer, Ball State University, alleging a fellow employee created a racially hostile work environment.  Under Title VII claims, the harasser's status is critical for employer liability.  For example, if the harasser is a co-worker, the employer may be liable if it was negligent in controlling the working conditions, such as if the employer was aware of a prior instance of harassment by the same employee, but failed to prevent further harassment.


On the other hand, if the harasser is a "supervisor" and the harassment "culminates in a tangible employement action," the employer is strictly liable.  To escapte liability if a "supervisor" commits harassment, the employer must prove as an affirmative defense that (1) it had an anti-harassment policy in place and (2) the harassed employment failed to follow the policy.


In Vance, it was undisputed that the "harasser" did not have the power to hire, fire, demote, promote, transfer, discipline, or reassign employees.  As such, the dispute focused on whether the harasser still qualified as a "supervisor" on the basis of her leadership responsibilities.


Decision and Analysis


The Supreme Court affirmed the decisions of the district court and Seventh Circuit, holding that a "supervisor" under Title VII must be able to take tangible employment actions, which they defined as the ability to make a significant change in employment status, such as the ability to hire, fire, demote, promote, transfer, discipline, or reassign an employee.


Citing previous holdings, the Supreme Court concluded that there was a "sharp line between co-workers and supervisors," which implied that the authority to take tangible employment actions is the defining characteristic of a supervisor.


What Does This Mean for Employers?


With this new guidance in mind, employers should modify their written job description for employees who are intended to have the supervisory authority as defined by Vance.  Employers should do the same for employees who may have some authority, but are not empowered to make supervisory decisions.  The Vance decision implies that "supervisory authority" can be determined through written documentation.


Employers should also update anti-harassment, EEO, and anti-retaliation policies, and ensure tha ttheir supervisors are properly and regularly trained with regard to policies.


Employers should continue to clearly and regularly communicate their anti-harassment, EEO, and anti-retaliation policies to their workforce, and ask their employees to acknowledge, in writing, that they have reviewed them.


For more information about this or another employment law topic, contact Attorney Peter J. Culp with the Dempsey Law Firm.

]]> (Jessica Slappey) Employment Law Wed, 14 Aug 2013 13:27:23 +0000
EEOC Settles First Ever Lawsuit Alleging Genetic Discrimination

Do you routinely ask job applicants for their family medical history>  Do you conduct pre-employent physical examinations, or ask a propsective employee to complete a medical questionnaire?  If so, and the information you gather through these means is used to determine the applicant's position or fitness for duty, you may be in violation of the Genetic Information Nondiscrimination Act ("GINA").  On May 7, 2013, the Equal Employment Opportunity Commission filed and settled its first ever lawsuit involving discrimination based on a job applicant's genetic information.


Factual Background


Rhonda Jones ("Jones") was a temporary memo clerk for Fabricut, one of the world's largest distributors of decorative fabrics.  When her 90-day temporary position was about to expire, she applied for a permanent position.  Fabricut made Jones an offer of permanent employment, but required that she participate in a pre-employment drug test and physical exam.


As part of Jones' physical, she was required to complete a medical questionnaire which asked for the disclosure of various disorders in her family history, including any history of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and/or "mental disorders."  Jones was then required to participate in medical testing, where the medical examiner concluded that she suffered from carpal tunnel syndrome.


When learning of this information, Fabricut told Jones she had to be evaluated by her own physician regarding the carpal tunnel diagnosis and provide the company with the results.  After a number of tests, Jones' own physician concluded she did not have carpal tunnel.  Desipte having this new information, Fabricut rescinded its offer because its own medical examiner believed she did have carpal tunnel.  Jones submitted a written request for reconsideration, adamant that she did not have carpal tunnel syndrome, but was ignored.


Analysis and Disposition


Among its various other provisions, Title II of GINA prohibits the use of genetic information in making employment decisions.  The genetic information covered by GINA incudes family medical history.  The Act also prohibits employers from acquiring genetic information through purchase, request, or requirements.  In addition, GINA also prohibits employers from retaliating against employees who complain about genetic discrimination.


Because the case was officially settled the same day it was filed, it is not clear how the case would have been decided had it moved through the court process.  Regardless, Fabricut agreed to take specific action designed to prevent future discrimination, including the posting of an anti-discrimination notice to employees, the dissemination of anti-discrimination policies to employees, and also providing anti-discrimination training to its employees with hiring responsibilities.  In addition, Fabricut made a $50,000.00 payment to Jones.


What Does This Mean for Employers?


While GINA was signed into law in 2008, it never received much attention.  The Fabricut case highlights a new focus on genetic information.  It signals the very important need for employers to remain diligent and aware of GINA, the ADA, and all other employment laws when creating or utilizing certain pre-hire procedures and requirements.  Employers should re-evaluate their current pre-hire procedures to ensure they are not requiring information reqgarding family history.  If so, employers should at least ensure such information plays no role in the hiring decision.


For more information about this or another employment law topic, please contact Attorney Peter J. Culp with the Dempsey Law Firm.

]]> (Jessica Slappey) Employment Law Mon, 12 Aug 2013 14:36:45 +0000
Seventh Circuit Affirms Successor Liability for Federal Employment Claims

Have you ever questioned what happens to federal claims under the Fair Labor Standards Act ("FLSA") when a business is bought and sold?  If you are a Wisconsin buyer, beware.  Federal law covering our area stands in contrast to Wisconsin law.  Teed v. Thomas & Betts Power Solutions provides that the buyer is liable for FLSA claims even when disclaimed in the purchase agreement.


Factual Background


In 2006, JT Packard & Associates' ("Packard") stock was acquired by the S.R. Bray Corporation ("Bray").  Packard retained its corporate identity and continued to operate as its own entity.  In 2008, Packard's employees filed a lawsuit alleging various FLSA violations.  Several months after the lawsuit was filed, Bray defaulted on a bank loan that Packard (now its subsidiary) had guaranteed.


To repay the debt, Bray assigned its assets, including the stock in Packard, to an affiliate of the bank, which then acutioned the assets.  Thomas and Betts Power Solutions ("Thomas") was the highest bidder, and structured the sale as an "asset purchase."  The agreement stated that Thomas was purchasing Bray "free and clear of all liabilities" and that Thomas would not assume any of the liabilities Packard might incur in the FLSA litigation, which had not yet concluded.  Significantly, Thomas continued operating Packard and retained most of Packard's employees.


The Packard employees then substituted Thomas as a defendant in their FLSA litigation, over Thomas' objection.  Thomas then made an offer of judgment, whcih was accepted, and proceeded to appeal the judgment on grounds of improper substitution.




The Court began its analysis by stating that if Wisconsin law governed liability, Thomas would be "off the hook" because of the conditions of the sale.  However, the Court held that when liability is based on a violation of a federal statute (such as the FLSA) the federal standard applied.  In determing whether successor liability would apply, the Court considered the following factors: 1) Did the successor have notice of the pending lawsuit; 2) Was the predecessor able to provide the relief sought in the lawsuit before the sale; 3) Could the predecessor have provided relief after the sale; 4) Could the successor provide the relief sought in the lawsuit; and 5) Was there continuity between the operations and workforce of the predecessor and the successor.


The Court found that Thomas did know of the pending lawsuit; that Packard and Bray could not provide the relief sought in the lawsuit before, or after, the sale; that Thoams could provide the relief sought in the lawsuit; and finally, that there was continuity in the operations and workforce between Thomas and Bray.


The Court reasoned that, unless there are good reasons for withholding successor liability, it is appropriate to enforce liability in suits involving federal labor or employment laws, despite an explicit disclaimer of the same from the successor company.  Absent successor liability, a violator of the FLSA could escape its liability by selling its assets at a higher price without having the purchasing company assume its liabilities, while also giving the purchaser a windfall.


What Does This Mean for Employers?


Teed has exposed asset purchasers to successor liability for FLSA claims despite express disclaimers int he sales contract.  The same risk is presented by other federal employment claims.  Buyers should take extra precaution when deciding a purchase price, possibly by reducing the price by the amount of potential liability, or placing a portion of the purchase price in escrow until liabilities have been determined.  For sellers, Teed may affect the market of potential buyers if the company may not have been in full compliance witht he FLSA.  In any event, both buyers and sellers should proceed with cuation when structuring an asset purchase.  For more information about this or any other employment law matter, please contact Attorney Peter J. Culp.

]]> (Jessica Slappey) Employment Law Tue, 06 Aug 2013 14:32:24 +0000
Differences Between the Federal and State Disability Laws

Employers know that both Wisconsin and federal laws protect their employees from workplace discrimination.  While these laws cover the same relative ground, employers may be surprised to know that the standards utilized under each are different.  For example, a reasonable accommodation under the Americans with Disabilities Act ("ADA") may not be reasonable under the Wisconsin Fair Employment Act ("WFEA").  This article will highlight some of the major differences between the two laws.


Who is Disabled?


When compared to the ADA, the WFEA includes a much larger spectrum of employees who may fall within its disability protections.  The WFEA does not include "per se" exclusions, while the ADA automatically excludes from protection individuals who use controlled substances or are transvestites, gamblers, pyromaniacs, etc.  Yet these same individuals may still pursue relief under the WFEA.


Another significant difference between the WFEA and the ADA is in the definition of "disabled" under each law.  the ADA defines "a qualified individual with a disability" as an employee with a physical or mental impairment that substantially limits one or more major life activities.  Under the WFEA, an "individual with a disability" is defined as an employee who has a physical or mental impairment that makes achievement unusually difficult or limits the capacity to work in their current position.  The "limits the capcity to work" language has no counterpart in the ADA.


Disability Discrimination


Both the ADA and WFEA prohibit employers from taking adverse actions against their employees "because of" a disability.  However, the language is interpreted differently between the state and federal courts and tribunals.  The federal courts interpret this "because of" language as requiring an employee to prove that the disability was the "but-for" cause of the adverse employment action.  In other words, the employee must prove that the employer would not have taken the adverse action "but for" the employee's disability.


While the WFEA contains the same "because of" language as the ADA, the phrase is interpreted much differently.  The state courts and tribunals utilize what is known as the "motivating factor" standard, which is more employee friendly when compared to the "but for" standard utilized by the ADA.  Under the "motivating factor" standard, an employee can prove discrimination by showing that the employee's disability was simply a motivating factor in the adverse employment action, not necessarily the primary factor.  


What is a "Reasonable" Accommodation?


Under the ADA, a reasonable accommodation must enable the employee to perform essential functions of his or her job.  It has been found that an employer may restructure the employee's job by reallocating or redistributing nonessential marginal functions, but is not necessarily required to reallocate essential functions.


Under the WFEA, state courts and tribunals have held that a reasonable accommodation is not limited to that which would allow the employee to adequately perform all of his or her job duties, and a change in job duties may be a reasonable accommodation in a given circumstance.  With this standard, the "essential functions" analysis is not necessarily a consideration.




With such marked differences between the ADA and WFEA as it relates to the WFEA's disability discrimination protections, employers should carefullyl assess their rights and responsibilities when faced with a disabled employee.


For more information about this or any labor and employment law question, please contact Attorney Peter J. Culp or another employment law attorney with the Dempsey Law Firm. 

]]> (Jessica Slappey) Employment Law Mon, 05 Aug 2013 20:41:10 +0000
New I-9 Form Must be Used by May 8, 2013

Another new employment form goes into effect.  The Department of Homeland Security (DHS) issued a new version of the Form I-9, Employment Eligibility Verification.  This new form as released on March 8, 2013, and is required to be used by employers on and after May 8, 2013.  DHS also issued an updated I-9 Handbook for Employers, which provides additional information about completing the I-9 Form and I-9 compliance.  If you have any questions about the new I-9 Form or any other employment or labor law question, please contact Attorney Peter J. Culp.

]]> (Jessica Slappey) Employment Law Wed, 20 Mar 2013 15:14:30 +0000
Some Changes to the Federal FMLA Go Into Effect this Week

The federal FMLA reached its 20-year anniversary on February 5, 2013. The U.S. Department of Labor marked the 20th anniversary by issuing a final rule implementing two important expansions of FMLA protections that go into effect this week.

The first expansion provides families of eligible veterans with the same job-protected FMLA leave currently available to families of military service members and it also enables more military families to take leave for activities that arise when a service member is deployed. Three new forms were issued:


  1.  Certification of Qualifying Exigency For Military Family Leave

  2.  Certification for Serious Injury or Illness of Current Servicemember - for Military Family Leave

  3.  Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave


The second expansion modifies existing rules so that airline personnel and flight crews are better able to make use of the FMLA’s protections.


A side-by-side comparison of the current and final regulations can be found at


Additionally, all covered employers are required to display and keep displayed a poster prepared by the U.S. Department of Labor summarizing the major provisions of the FMLA and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. The new poster must be displayed on and after March 8, 2013.


If you have any questions about this Employment Law Alert or any other employment or labor law question, please do not hesitate to contact Attorney Peter Culp or another employment attorney with Dempsey Law Firm, LLP.

]]> (Jessica Slappey) Employment Law Mon, 04 Mar 2013 16:00:47 +0000
Job Transfer May Be Considered a Reasonable Accommodation

Has an employee ever requested a transfer to another office as an accommodation of his or her disability?  This type of accommodation was the subject of a recent United States Court of Appeals decision, which employers should consider when dealing with similar requests.


Factual Background

The employee was a secretary of the United States Forest Service in Lufkin, Texas.  While working, she fell and suffered an irreversible brain injury.  The injury caused her to lose half of her field of vision.  She also had difficulty reading, and struggled with bright lights.  She could not work at a computer for more than 45 minutes at any given time.


The employee claimed there was a lack of public transportation in Lufkin, and there were no doctors in Lufkin who were qualified to provide the specialized therapy she needed to adjust to her injury.  She found qualified doctors in Albuquerque, New Mexico (which happened to be where she had family and friends).  As a result, she requested a transfer to the Albuquerque office as an accommodation of her disability.


In response to her request, the employee was temporarily assigned to a 120-day detail in Albuquerque.  While there, a specialist taught her techniques to aid her reading.  The employee applied for two equivalent-pay positions that became available in Albuquerque.  At least one co-worker objected to the employee being permanently assigned to the Albuquerque office because she was disruptive and inefficient.  Despite meeting the minimum qualifications for those positions, she was not hired to fill either position.  Ultimately, the employee accepted a lower-paying position in the Albuquerque office, and then filed a disability discrimination suit against her employer.


The Court's Analysis

In defending against the disability discrimination suit, the employer argued that a job transfer is only required where the employee's disability prevents him or her from performing the essential functions of the current position.  This argument was rejected by the Court.


Citing regulations of the Equal Employment Opportunity Commission and various appellate decisions (including the 7th Circuit, which governs federal matters in Wisconsin), the Court held that "as a matter of law transferring an employee for the purposes of treatment or therapy may be a reasonable accommodation..." even if an employee is able to perform the essential functions of her job without it.



In this type of case employers may raise the defenses that the accommodation would impose an undue hardship and/or that reassignment was not necessary for the employee to access treatment.  Neither defense was raised by the employer.


What Does This Mean for Employers?

Employers should carefully evaluate any request for accommodations by a disabled employee, especially if it involves a transfer to another position within the employer.  Is the employee disabled?  Is the employee qualified to perform the essential functions of the job?  Is the request for accommodations reasonable?  Is the requested accommodation necessary?  Would the requested accommodation impose an undue hardship upon the employer?  These and other relevant questions are fact intensive and require careful evaluation, both factually and legally.


For more information about this Employment Law Alert, or any labor and employment law question, please contact Attorney Peter Culp or another employment law attorney with the Dempsey Law Firm, LLP.

]]> (Jessica Slappey) Employment Law Mon, 04 Mar 2013 15:37:51 +0000
New Interpretation of "Son or Daughter" Expands FMLA Protections for Adult Children

Most employers are aware that eligible employees are entitled to take up to 12 weeks of unpaid, job-protected leave during a 12-month period under the federal Family & Medical Leave Act (“FMLA”) to care for a “son or daughter” who has a serious health condition. While employees will not question taking leave to care for a child under the age of 18, the Department of Labor (“DOL”) has recently interpreted the term “son or daughter” to include adult children who have qualifying disabilities.


Eligibility of Adult Child

The FMLA broadly defines “son or daughter” to include adult children who are incapable of self-care due to mental or physical disability. An employee is entitled to take FMLA leave to care for an adult son or daughter if the child meets all of the following criteria: 1) has a disability as defined by the Americans with Disabilities Act (“ADA”); 2) is incapable of self-care due to the disability; 3) has a serious health condition; and 4) is in need of care due to the serious health condition. Significantly, age of onset of the disability is irrelevant for the FMLA “son or daughter” determination.


1) Disability

The FMLA adopts the ADA’s broad definition of “disability,” which is defined as “an impairment that substantially limits one or more major life activities." The term “major life activities” has been interpreted to include caring for oneself, seeing, hearing, eating, sleeping, walking, etc. The ADA Amendments of 2008 expanded the definition of “major life activities” to include, “operation of major bodily functions” such as “functions of immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, and reproductive functions.”


2) Incapable of Self-Care due to Disability

To qualify as an FMLA “son or daughter,” the child must also "be incapable of self-care" because of the disability. This is a fact-specific determination based on the child's condition at the time of the requested leave. A child is incapable of self-care if he or she requires "active assistance or supervision to provide daily self-care in three or more of the 'activities of daily living' (ADLs) or 'instrumental activities of daily living' (IADLs)." ADLs include hygiene, dressing, eating, etc., while IADLs include cooking, cleaning, transportation, use of telephone, etc.


An example of an adult child who may be ADA disabled but not considered an FMLA “son or daughter” would be an employee's diabetic son (an ADA disability), who lives independently and requires no assistance has a skiing accident that hospitalizes him for a short period, but does not render him temporarily or permanently disabled. This child is disabled, but is not incapable of self-care resulting from his or her diabetic disability.


3) Serious Health Condition

In addition, the adult child must have a “serious health condition” as defined by the FMLA. A serious health condition includes illness, injury, or impairment, among other conditions. Practically speaking, most disabilities under the broad ADA definition will meet the “serious health condition” definition of the FMLA.


4) In Need of Care

The parent must also be needed to care for the child due to the serious health condition. A parent can be “needed to care” if the adult child is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety or if the parent is needed to provide psychological comfort and reassurance that would be beneficial to a child receiving inpatient or home care.


Finally, this interpretation also impacts the FMLA’s Military Care Giver Leave provision, which allows a parent of a service member who sustains a serious injury or illness during service to take leave for up to 26 weeks. With the interpretation that age of onset is not relevant for “son or daughter” determinations, a parent who exhausts their 26 week leave may now take a subsequent 12 week leave under the “son or daughter” provision in subsequent years.


For more information about this alert please contact Attorney Peter Culp or another employment law attorney with the Dempsey Law Firm.

]]> (Jessica Slappey) Employment Law Tue, 05 Feb 2013 14:31:10 +0000
Appointments of NLRB Members Held Constitutionally Invalid

In my November 2012 Employment Law Alert I wrote about a recent National Labor Relations Board (NLRB) decision that found “at will” employment waiver language unlawful under the National Labor Relations Act (NLRA). In my December 2012 Employment Law Alert I wrote about another recent NLRB decision that found blanket confidentiality policies and practices during investigations may be unlawful under the NLRA. These decisions reflected significant shifts in Board practice and long-standing precedent. Additional uncertainty was added to the mix a few days ago.


On Friday, January 25, 2013, the Court of Appeals for the D.C. Circuit issued a decision that held President Obama’s purported NLRB recess appointments in January 2012 are constitutionally invalid. The immediate effect of this appellate decision is to deprive the NLRB of a quorum, and places into question the validity and applicability of all decisions issued by the NLRB, beginning in 2012 and continuing until the NLRB has a quorum of members who the Senate has confirmed through traditional constitutional methods. In light of the significance of the decision, it is a virtual certainty that this decision will be appealed to the U.S. Supreme Court which will likely decide to review it.


I will be continuing to monitor this employment/labor law development and will issue further Alerts as the matter continues to develop. In the meantime, if you would like to discuss how this or other developments may impact your business, please do not hesitate to contact me.


Attorney Peter Culp

]]> (Jessica Slappey) Employment Law Tue, 05 Feb 2013 14:22:53 +0000