SEVENTH CIRCUIT ISSUES ADA REASSIGNMENT GUIDANCE

By: Kristofor L. Hanson & Christopher J. Saugstad

November 25, 2019

The Seventh Circuit Court of Appeals recently clarified its position concerning reassignment as an accommodation under the Americans with Disabilities Act (the “ADA”). Under the ADA, employers have an affirmative duty to reasonably accommodate an employee’s disability. While engaging in the interactive process to find a reasonable accommodation, in situations where an employee is unable to perform the essential functions of his or her job even with reasonable accommodations, employers are required to evaluate reassignment to a vacant position as an accommodation. Previously, in EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012), the Seventh Circuit explained that the ADA requires employers to appoint disabled employees to vacant positions for which the employee is minimally qualified, unless the reassignment would pose an undue hardship to the employer or there is a bona fide seniority system in place. Pursuant to this decision, employers cannot force the disabled employee to go through a competitive process to be placed into a vacant position as a reasonable accommodation.

On November 15, 2019, the Seventh Circuit revisited the issue of reassignment under the ADA in Ford v. Marion Cty. Sheriff’s Office, No. 18-3217, 2019 U.S. App. LEXIS 34072, (7th Cir. Nov. 15, 2019). Ford worked as a deputy at the county sheriff’s office until her hand was seriously injured in a car accident while on duty. Ford was reassigned to light duty for about a year until she accepted a position as a jail visitation clerk; Ford was given the option to accept the visitation position, resign, or be fired. After Ford’s reassignment, she alleged she suffered disability-based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials. Ford brought an action against Marion County for violations under the ADA.

The Seventh Circuit found the district court properly granted summary judgment on Ford’s claim regarding reassignment to the visitation clerk position and explained a “demotion can be a reasonable accommodation when the employer cannot accommodate the disabled employee in her current or prior jobs or an equivalent position.” The Court pointed out EEOC guidance regarding reassignment and demotion states: “An employer may reassign an individual to a lower graded position if … there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”

The Court noted that if there had been a vacant position that more closely matched Ford’s previous position, under the ADA, Marion County would have been obligated to reassign her to that position.

Significantly, the Seventh Circuit suggested that Marion County, as the employer, had an obligation to “to canvass available positions and, if a vacant job existed that Ford was qualified to perform with or without reasonable accommodations, to offer it to her.” Employers should review their current process regarding reassignment as a potential reasonable accommodation. Once reassignment becomes a potential accommodation, employers should actively canvas their current vacancies in relation to the disabled employee’s qualifications. If there is a match, the employee should be offered the job. Merely inviting employees, without any employer assistance, to apply for any vacant positions for which they think they may be qualified is insufficient.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about the ADA, reasonable accommodation and the possibility of reassignment, or any other labor or employment issue involving your business, please contact us at any time.

LINDNER & MARSACK, S.C., ANNOUNCES SUPER LAWYER DESIGNATIONS FOR 2019

Lindner & Marsack, S.C., today announced five attorneys have been acknowledged as Super Lawyers for 2019. Honorees include Douglas M. Feldman, Thomas W. Mackenzie, Gary A. Marsack, Jonathan T. Swain and Oyvind Wistrom.

“We’re very gratified that the dedication of these individual attorneys is being recognized and honored by their peers through Super Lawyers,” said Wistrom, President of Lindner & Marsack.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Attorneys are selected using a rigorous, multi-phase rating process in which peer nominations and evaluations are combined with third party research. The objective of the program is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.

In addition, Lindner & Marsack has once again been selected as a Best Law Firm (for 2020) in U.S. News & World Report’s annual Best Lawyers rankings. These selections are based on a rigorous process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

“Every single day, we dedicate ourselves to helping employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges,” said Wistrom. “First and foremost, we do what we do to advance the interests and success of our clients. To be recognized for that work by leading industry publications and rankings adds another element of pride and satisfaction for our entire team.”

 

LAURIE PETERSEN NAMED PRESIDENT OF WORKLAW® NETWORK

Lindner & Marsack, S.C., announced today Laurie Petersen has been named as the new president of Worklaw® Network.

Petersen is a shareholder and member of Lindner & Marsack’s Board of Directors. Her labor and employment law experience covers a broad spectrum of matters for diverse business organizations in a range of industries.

“It’s my hope that my extensive experience in all aspects of employment law will position me well to lead the activities of my esteemed colleagues and peers in Worklaw® Network,” said Petersen. “Employers today face complex legal considerations, and I’m honored to lead an organization that helps employers minimize their risks and navigate their challenges.”

Worklaw® Network is a network of independent law firms that have formed a not-for-profit association for the professional exchange of information.  Worklaw® Network’s rigorous membership recruiting standards offer employers a virtual “seal of approval.”  Worklaw® Network member firms and their clients can utilize the resources of more than 350 lawyers, all of whom practice exclusively in labor and employment matters for employers. Collectively, Worklaw® Network members have over 34 offices in 27 U.S. states plus Canada and Mexico, and the network includes affiliate members in Australia, Europe, Asia and India. The network formed in 1989.

Petersen will serve a one year term as President until October 2020.

LINDNER & MARSACK, S.C. NAMES THREE LONG-TIME ATTORNEYS AS SHAREHOLDERS

Lindner & Marsack, S.C., announced today that three attorneys – Kristofor Hanson, Chelsie Springstead and Melissa Stone – will become equity shareholders in the growing Milwaukee-based firm effective January 1, 2020.

Hanson represents employers in a wide variety of labor and employment law matters with a heavy emphasis on traditional labor law, collective bargaining, contract administration and labor relations. He also has significant experience handling employment discrimination claims, wage and hour issues, Family and Medical Leave Act and disability claims, and disputes arising under the National Labor Relations Act. He is a member of the State Bar of Wisconsin and the American Bar Association; a past Chairman of the Board of Directors for the Curative Care Network; and a member of the Dean’s Advisory Board at UW-Whitewater. He has been recognized several times as a “Rising Star” by Super Lawyers magazine.

Springstead joined Lindner & Marsack, S.C. in 2009. Her practice focuses on worker’s compensation defense, employment defense, subrogation, and Medicare-related issues. She is a frequent speaker and lecturer on worker’s compensation, employment law, and Medicare-related topics, and also provides training to employers and insurance carriers in these areas. Springstead has been very active in the worker’s compensation community throughout her career, having recently been named as President of the Wisconsin Worker’s Compensation Forum Board and serving for years as Secretary and Treasurer of the Wisconsin Association of Worker’s Compensation Attorneys in the past. She has been recognized several times as a “Rising Star” by Super Lawyers magazine.

Stone, who has been with the firm since 2012, has been exclusively practicing worker’s compensation defense and subrogation for more than a decade. In her practice, she represents insurance carriers and self-insured employers, providing legal guidance and counsel on highly complex situations, as well as establishing action plans for case investigation and litigation through hearings and appeals. Stone is a frequent lecturer and presenter on worker’s compensation law topics in Wisconsin and she is a Board Member for the Wisconsin Association of Worker’s Compensation Attorneys (WAWCA).

Springstead and Stone are both members of Lindner & Marsack’s highly regarded worker’s compensation defense team, which received a ‘first tier’ ranking by U.S. News & World Report.

Firm President Oyvind Wistrom looks forward to starting the new year with an ever-deepening leadership team. “Our focus every single day is to serve as management’s most trusted partner and advisor,” he says. “The challenges faced by employers are more complex and multi-faceted than ever, and our commitment to help clients navigate challenges is stronger than ever. Kris, Chelsie and Melissa bring decades of experience and proven results in helping our clients mitigate risk, manage costs and, ultimately, be successful.”

Daniel Finerty Appointed To The Native Nations Law Task Force By DRI, The Voice Of The Defense Bar

Daniel Finerty, a Shareholder with Lindner & Marsack, S.C., was recently appointed to Native Nations Law Task Force by DRI, The Voice Of The Defense Bar.

Launched in 2017, Native Nations Law Task Force, a first-of-its-kind initiative, provides networking and educational opportunities for defense litigators, tribal in-house counsel and insurance companies called upon to defend native nations faced with civil lawsuits where the parties often find themselves in tribal jurisdictions, subject to the unique laws and customs of a tribal justice system.

Mr. Finerty continues to extend his practice defending native nations and their Employment Practice Liability Insurance carriers facing employment litigation in tribal, state and federal courts. He provides a unique skillset to native nations and their insurance carriers, bringing his 20-plus years of employment litigation experience, and his expertise defending sovereign nations in employment disputes, to bear in these matters.

Mr. Finerty looks forward to bringing his unique experience to further assisting native nations facing civil litigation. “I have been honored and humbled to support the extremely talented attorneys who provide general counsel to several Native American nations, and their insurance partners. I hope to continue doing so through the Native Nations Law Task Force. This effort is already gaining momentum with representation of several jurisdictions across the United States, including Alaska, and the First Nations in Canada,” Mr. Finerty said. The Native Nations Law Task Force presented at DRI’s Annual Meeting in October 2018 and is continuing its outreach to DRI going forward.

“Daniel’s unique expertise in defending native nations in employment disputes pairs up incredibly well with his deep experience working with the employment practice liability insurers that support his tribal clients. This honor is testament to his passion for this work,” said Oyvind Wistrom, Lindner & Marsack, S.C.’s President.

For more than fifty-five years, DRI has been the voice of the defense bar, advocating for 22,000 defense attorneys, commercial trial attorneys, and corporate counsel and defending the integrity of the civil judiciary. A thought leader, DRI provides world-class legal education, deep expertise for policy-makers, legal resources, and networking opportunities to facilitate career and law firm growth.

NLRB ISSUES ADVICE MEMORANDUM REGARDING EMPLOYER SOCIAL MEDIA POLICIES

By: Jonathan T. Swain & Christopher J. Saugstad

September 27, 2019

The National Labor Relations Board (“NLRB”) recently made public an Advice Memorandum (the “Memorandum”) by its General Counsel on August 15, 2019. The Advice Memorandum detailed the General Counsel’s advice regarding specific social media policies of CVS Health. The Memorandum examined numerous social media policies of CVS Health and found most to be lawful except two specific policies related to the disclosure of personal information.

The Memorandum utilized the new balancing test established in Boeing Co., 365 NLRB No. 154, which evaluates “(i) the nature and extent of the potential impact of Section 7 rights, and (ii) legitimate business justifications associated with the requirements(s).” Additionally, the Memorandum explained how the new balancing test creates three categories in which to classify various types of employer rules. The three categories are broken down into:

  • Category 1: lawful rules that either don’t interfere with NLRA-protected rights or for which the possibly adverse impact on protected rights is outweighed by the employer’s legitimate business justifications;
  • Category 2: rules which warrant individualized scrutiny on a case-by-case basis as to whether they would interfere with NLRA rights, and if so, whether the adverse impact on the protected conduct is outweighed by the legitimate business justifications; and
  • Category 3: unlawful rules which prohibit or limit NLRA-protected conduct and for which the adverse impact on workers’ rights is not outweighed by the employer’s legitimate business justification.

Here, the General Counsel found two CVS Health policies that ran afoul of Section 7 rights under the new balancing test. First, CVS Health adopted a policy in which employees were required to identify themselves by name if they mentioned CVS Health or discussed their work on social media. The Memorandum classified this rule under Category 2, found it unlawful, and explained “[t]he Board has recognized that requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights.” The Memorandum explained CVS Health had other policies in place to ensure employee’s social media posts were not being made upon CVS Health’s behalf.

The General Counsel deemed another policy unlawful in relation to personal information. CVS Health’s Handbook and Social Media Policy contained a restriction that prohibited employees from disclosing “employee information” on social media. This policy was also classified by the NLRB as a Category 2 policy and was found by the NLRB as restricting employees’ ability to engage in Section 7 activities. “While the employer has a legitimate business interest in keeping customers’ and employees’ personal and medical information confidential, it has no legitimate interest in preventing employees from sharing contact information or discussing wages, working conditions or employment disputes.”

The Memorandum advised bringing a complaint against CVS regarding the two policies found to be unlawful under the newly established standing in Boeing Co. Due to the decision in Boeing Co., along with the recently published Advice Memorandum, employers will want to review their current handbook and social media policies. Policies requiring employee identification by real name when discussing their employer or their work, or policies prohibiting employees from disclosing “employee information” on social media may be deemed unlawful.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about effective workplace handbook and social media policies, or any other labor or employment issue involving your business, please contact us at any time.

NLRB Adopts a New, Employer-Friendly Standard for Unilateral Changes to Job Terms and Asks for Input on Its Standard Protecting Profane Speech

David Keating and Kristofor Hanson

Over the course of the past year, the National Labor Relations Board (“Board”) has indicated its willingness to develop more employer-friendly standards that allow employers more flexibility in managing their businesses and their unionized workforces.  Just in the past week, the Board continued its efforts with a ruling allowing for greater ease in implementing unilateral changes to job terms and by seeking input on a troubling standard that had protected outrageous speech by employees.

In M.V. Transportation, 28-CA-173726, decided September 10, 2019, the Board overturned a long-standing, stringent standard that limited an employer’s right to make unilateral changes to job terms such as work rules and attendance policies.  In doing so, it adopted a new “contract coverage” test that allows employers more flexibility in making such changes.

The “contract coverage” standard allows an employer to make unilateral changes to employees’ terms and conditions of employment if the labor contract “contains a provision that broadly grants the employer the right to implement new rules and policies and to revise existing ones.”  An employer would thus have the right to enact changes such as implementing new attendance and safety rules or revise disciplinary or off-duty access policies, according to the Board.

Under the previous “clear and unmistakable waiver” standard, for an employer to make unilateral changes to work rules, attendance policies, or the like, it had to demonstrate that the contract specifically and unequivocally waived the union’s statutory right to bargain over that particular issue.  In overturning this standard, the Board followed the lead of the D.C. Circuit Court of Appeals, which had stated that the “clear and unmistakable waiver” standard was “in practice, impossible to meet.”

According to the Board, the new “contract coverage” test will allow every part of a collective bargaining agreement to be given its bargained-for effect, including those that give an employer the right to act without bargaining first.

Board Will Reconsider Its Loss-of-Protection Standards for Profane and Offensive Outbursts of a Racial and Sexual Nature

In another notable Board development, on September 5, 2019, the Board requested briefing on whether it should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature.  The Board issued a notice and invitation to file briefs in General Motors LLC, 14-CA-197985 and 14-CA-208242, seeking public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language has been deemed protected by the National Labor Relations Act (“Act”).

Specifically, the notice seeks comments relating to the following cases: Plaza Auto Center, 360 NLRB 972 (2014), Pier Sixty, LLC, 362 NLRB 505 (2015), and Cooper Tire, 363 NLRB No. 194 (2016).  These cases, discussed in General Motors, resulted in considerable protection for outrageously offensive statements.The Board’s treatment of such sexually and racially offensive statements has been criticized as both morally unacceptable and inconsistent with other workplace laws by federal judges as well as within the Board itself.

About the invitation for briefing, Chairman John F. Ring stated: “The Board’s request for briefing on this important topic reflects its long-standing practice of seeking input from interested parties when the Board believes it can benefit from such briefing. We look forward to considering the views of all interested parties.” 

Amicus briefs not to exceed 25 pages in length may be filed with the Board in Washington, D.C. on or before November 4, 2019.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law.  If you have any questions about the notice and invitation to file briefs or any other labor or employment issue involving your business, please contact us at any time.

NLRB RULES MISCLASSIFICATION OF INDEPENDENT CONTRACTORS DOES NOT VIOLATE THE NLRA

By: Christopher J. Saugstad

September 6, 2019

On August 29, 2019, the National Labor Relations Board (the “Board”) determined that employers do not violate the National Labor Relations Act (the “NLRA”) merely by misclassifying employees as independent contractors when they should have been classified as employees.

In Velox Express, Inc., 15-CA-184006, 368 NLRB No. 61 (2019), the Board reversed a prior Obama-era decision which ruled Velox had unlawfully interfered with its workers’ rights under the NLRA. Velox Express, Inc. (“Velox”) is a medical courier service in which a number of its drivers were classified by Velox as independent contractors. The Charging Party in Velox raised group complaints of the independent contractor classification and was subsequently discharged.

Initially, an Administrative Law Judge ruled Velox had interfered with workers’ rights by Velox’s misclassification of the Charging Party. Upon review, the Board requested briefing and received thirteen briefs from twenty-eight interested parties. The Board, utilizing their recent decision in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), determined the workers were actually employees and therefore protected by the NLRA. The Board held Velox had violated the NLRA when it discharged the Charging Party for bringing to management’s attention group complaints regarding its treatment of employees.

Notably, however, the Board reversed the judge’s decision that the misclassification of independent contractors violated the NLRA as a separate and distinct violation. The Board reasoned “erroneously communicating to workers that they are independent contractors does not, in and of itself, contain any ‘threat of reprisal or force or promise of benefit.’” The Board held this type of misclassification would not inherently threaten employees’ adverse actions like discharge if they were to engage in protected activities under the NLRA; nor would the communication of classification solely show it was futile for the workers to engage in such protected activities. The Board explained, “[i]n and of itself, an employer’s communication of its position that its workers are independent contractors simply does not carry either implication.”

Additionally, the Board held that finding that a misclassification created a violation of the NLRA would deter employers from creating independent contractor relationships and would improperly shift the burden of proof to employers.

The Board’s recent ruling in Velox means the Board has removed itself from any future decisions based solely on worker misclassification. Unlike employees, who enjoy protected rights under the NLRA including unionization, independent contractors are not covered by the NLRA and are therefore not protected by it either. While this decision is viewed as a victory for employer, the importance of properly classifying and paying employees remains critical to avoid possible violations of the Fair Labor Standards Act (the “FLSA”).

Lindner & Marsack has represented employers in their dealings with unions for over a century. If you have any questions about this case or any other aspect of classic labor-management law, please feel free to contact us at any time.

NLRB PUTS NEW LIMITS ON UNION ORGANIZING ACTIVITIES ON PRIVATE PROPERTY

In Bexar County Performing Arts Center Fdn. d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), the National Labor Relations Board has limited prior decisions, which allowed the employees of a tenant to engage in union activities on the private property of their employer’s landlord.  Whether or not the tenant’s employees normally worked at the location or the general public was invited to that location, the landlord’s property rights could exclude the union activities of the tenant’s workers on the premises if they interfered with the property owner’s business.  The only exception would be situations where the union had no “reasonable alternative” communication option to reach its “target [public] audience.”

Since the early 1940’s, employees enjoyed the right to engage in organizational activities on their own employer’s property in non-work areas during their off-duty time.  The original cases involved speaking, distributing leaflets, and sometimes picketing in the employer’s parking lots, lunch rooms, or locker rooms.  However, these rights did not apply to non-employees such as outside organizers paid by the union.  Unless the work location could not be reached without entering private property (for example, an isolated lumber camp), the non-employee was only allowed to deliver the union’s message from the nearest public property, typically, a municipal sidewalk.  Lechmere, Inc. v. NLRB, 502 U.S. 527, 537 (1992), quoting NLRB v. Babcock & Wilcox, 351 U.S. 105, 112-113 (1956). 

With the advent of shopping centers, office parks, and other complexes where the public was invited to enter private property in order to reach the business site of an employer, courts held that non-employees could leaflet and otherwise campaign on that private property.  Shopping centers and similar privately owned gathering places became the new “town square” where all kinds of groups, including unions, could take their message to the public.  This was especially the case when other methods of communication (newspapers, radio, etc.) could not reach the targeted workers.  In 2011, the NLRB held that a union seeking to organize a restaurant which leased a second floor space at a Las Vegas casino could campaign where the aisle used by the general public intersected with the restaurant’s entry.  New York New York Hotel & Casino, 356 NLRB 907 (2011), enf’d. 676 F.3d 193 (D.C. Cir. 2014).  The property was owned by a third-party landlord.  The theory was that people were invited to use this area like a public sidewalk, so the union could not be banned as some kind of trespasser unless the landlord could prove the activity would prevent its use of the property.

In a three to one decision this month, the NLRB held that the right to organize must be balanced with the property owner’s rights to limit the activities of trespassers.  In Bexar County Performing Arts Center, supra,musician-employees of the San Antonio Symphony were prohibited from leafleting the general public on the private walks surrounding the concert hall.  The musicians were “contractor employees” of the tenant symphony, not employees of the owner/landlord.  They only worked on the premises during rehearsals and performances 22 weeks of their 39 week season.  Thus, they did not have the rights of employees of the property owner, but were non-employees who could be barred from the property like the non-employee union-paid organizers in Lechmere and Babcock & Wilcox; supra.  The Board said:

“Off-duty employees of a contractor [tenant] are trespassers and are entitled to access for Section 7 [union activity] purposes only if the property owner cannot show that they have one or more reasonable alternative nontrespassory channels of communicating with their target [public] audience.”

The new balance requires consideration of the third-party landlord’s right to limit access (and disruption) by a union or its members if they can use alternative media to present their otherwise lawful message.  They are not the landlord’s employees; as non-employees they can be treated as trespassers and excluded from the private property to which the general public has access.

Lindner & Marsack has represented employers in their dealings with unions for over a century.  If you have any questions about this case or any other aspect of classic labor-management law, please feel free to contact us at any time.

LINDNER & MARSACK, S.C., ANNOUNCES 2020 BEST LAWYER DESIGNATIONS

Lindner & Marsack, S.C. today announced six attorneys have been recognized for 2020 as part of the annual Best Lawyers list, one of the oldest and most highly-respected peer review guides to the legal profession worldwide.

Thomas Mackenzie, Gary Marsack, Jonathan Swain and Oyvind Wistrom were acknowledged in the Employment Law-Management category while Mackenzie, Marsack and Swain also made the Labor Law-Management list; Mackenzie and Wistrom were acknowledged in the Litigation-Labor and Employment category; Daniel Finerty was honored in the Appellate Practice category; and Douglas Feldman was honored in the Workers’ Compensation Law-Employers category.

“We have a dedicated team providing excellent labor and employment representation and work injury defense to employers in Wisconsin and around the country,” said Wistrom, President of the Firm. “The Best Lawyers designations are especially meaningful because they come from our esteemed colleagues and peers. But, most importantly, we appreciate recognition for the level of service and dedication we deliver to our clients as management’s most trusted legal advisor.”

Best Lawyers rankings are compiled by conducting exhaustive peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. If the votes for an attorney are positive enough for inclusion in Best Lawyers, that attorney must maintain those votes in subsequent polls to remain on the list for each edition. Best Lawyers peer-reviewed listings are now published in more than 70 countries around the world.