Latest Blog Posts under "Employment Law" Oshkosh, Wisconsin full service law firm with attorneys specializing in Estate Planning, Employment Law, Business Law, Tax Law and Litigation http://dempseylaw.com Mon, 25 Sep 2017 11:40:07 +0000 Joomla! - Open Source Content Management en-gb The Outcome of the Presidential Election will Determine the Breadth of the Overtime Rule http://dempseylaw.com/component/k2/item/45-the-outcome-of-the-presidential-election-will-determine-the-breadth-of-the-overtime-rule http://dempseylaw.com/component/k2/item/45-the-outcome-of-the-presidential-election-will-determine-the-breadth-of-the-overtime-rule

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.

IMPACT ON SMALL BUSINESSES

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.

OPPOSING VIEWS BY PRESIDENTIAL CANDIDATES

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.

WHAT DOES THIS MEAN FOR EMPLOYERS?

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.

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jeanna@b2computing.com (Jeanna Rasmussen) Employment Law Fri, 04 Nov 2016 02:33:52 +0000
U.S. Supreme Court Adopts Narrow Definition Of "Supervisor" http://dempseylaw.com/component/k2/item/39-us-supreme-court-adopts-narrow-definition-of-supervisor http://dempseylaw.com/component/k2/item/39-us-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.

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js@dempseylaw.com (Jessica Slappey) Employment Law Wed, 14 Aug 2013 13:27:23 +0000
EEOC Settles First Ever Lawsuit Alleging Genetic Discrimination http://dempseylaw.com/component/k2/item/38-eeoc-settles-first-ever-lawsuit-alleging-genetic-discrimination http://dempseylaw.com/component/k2/item/38-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.

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js@dempseylaw.com (Jessica Slappey) Employment Law Mon, 12 Aug 2013 14:36:45 +0000
Seventh Circuit Affirms Successor Liability for Federal Employment Claims http://dempseylaw.com/component/k2/item/37-seventh-circuit-affirms-successor-liability-for-federal-employment-claims http://dempseylaw.com/component/k2/item/37-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.

 

Analysis

 

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.

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js@dempseylaw.com (Jessica Slappey) Employment Law Tue, 06 Aug 2013 14:32:24 +0000
Differences Between the Federal and State Disability Laws http://dempseylaw.com/component/k2/item/36-differences-between-the-federal-and-state-disability-laws http://dempseylaw.com/component/k2/item/36-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.

 

Conclusion

 

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. 

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js@dempseylaw.com (Jessica Slappey) Employment Law Mon, 05 Aug 2013 20:41:10 +0000