LINDNER & MARSACK, S.C. ANNOUNCES NEW PRESIDENT AS TWO NEW ASSOCIATES JOIN THE TEAM

Lindner & Marsack, S.C. announced today that Oyvind Wistrom will take over duties as the Firm’s President. Wistrom has been with the Firm since 1994, has been a shareholder since 2005 and has served on the board of directors since 2014. At the same time, Lindner & Marsack has added two new associates to their team: James Panther and Christopher Saugstad.

Wistrom is pleased to be taking over leadership of the Firm at a time of continued growth. “We’ve built our reputation as a trusted advisor and partner over more than 100 years of helping clients solve their toughest legal challenges,” he says. “I’m honored to have been entrusted with that legacy and look forward to continuing to advance the work we do to help employers minimize risk and implement practical, cost-effective, and legally-sound business solutions.”

Panther joins Lindner & Marsack’s widely-recognized worker’s compensation defense team. He received his JD from Marquette University Law School in 2014 and has been practicing law in Wisconsin since. He is a member of the Wisconsin Association of Worker’s Compensation Attorneys (WAWCA) and the State Bar of Wisconsin.

A 2018 graduate of Marquette University Law School, Saugstad was a Thomas More Law Scholar, a member of the Marquette Business Law Society and had the opportunity to intern for the U.S. Law Library of Congress. He will focus primarily in the areas of employment counseling, litigation and employee benefits. He is a member of the State Bar of Wisconsin, the American Bar Association and the Milwaukee Bar, as well as the Young Lawyers Divisions of those organizations. He is currently admitted to practice in all Wisconsin state courts, in federal court in the Eastern District of Wisconsin, and in the United States Circuit Court of Appeals for the 7th Circuit.

“I’m pleased that one of my first official duties is to welcome James and Christopher to Lindner & Marsack,” says Wistrom. “They will both be great assets to their colleagues and our clients as we continue to provide top quality labor and employment representation and work injury defense to employers in Wisconsin and around the country.”

Updated EEO-1 Reporting Requirements

On March 5, 2019, a Federal Judge reinstated the EEO-1 pay data reporting requirement for all covered employers. Covered employers include employers with over 100 employees or federal contractors with 50 or more employees and a government contract worth $50,000 or more.

The EEO-1, otherwise known as The Employer Information Report, is a compliance survey which is to be submitted to the U.S. Equal Employment Opportunity Commission (the “EEOC”) and the Department of Labor’s Office of Federal Contract Compliance Programs annually.

For employers already required to submit an EEO-1 report, the March 5th reinstatement now requires EEO-1 Component 2 (the pay data reporting requirement) to also be submitted. On April 3, 2019, the EEOC filed a proposal extending the deadline to complete EEO-1 Component 2 to September 30, 2019. The Federal Judge will now assess the EEOC’s proposal and issue an order regarding the proposal and extended deadline. It is recommended employers start taking the necessary steps to gather relevant pay data and prepare for the obligation to file EEO-1 Component 2 in 2019.

Importantly, the Federal Judge’s reinstatement of EEO-1 Component 2 reporting does not in any way alter the deadline to file an employer’s annual EEO-1 report. This deadline is still May 31, 2019.

If you have any questions regarding the updated EEOC reporting requirements and how they may impact your business, please contact me by email at csaugstad@lindner-marsack.com or another attorney with whom you have been working at Lindner & Marsack, S.C.

REGISTER NOW! 2019 COMPLIANCE/BEST PRACTICES SEMINAR

WHEN: May 8, 2019 – 8:00 a.m. – 12:00 p.m.

375 South Moorland Road, Brookfield, WI

WHERE: Sheraton Milwaukee Brookfield Hotel

Registration and a continental breakfast will be served beginning at 7:30 a.m. Click here to register.

This COMPLIMENTARY half-day seminar will address the latest labor and employment topics impacting employers today, including:

2019 Legal Updates for Labor, Employment and Worker’s Compensation

Is Your Company Protected? Legal Challenges in a Tight Labor Market

Mental Health, Alcohol & Opioids in the Workplace: Recognizing an Employee in Crisis and the Impact on Employment Policies and Worker’s Compensation Claims

Trump-Era DOL Proposes New Overtime Rule

By: David Keating

On March 7, 2019, the U.S. Department of Labor (DOL) published an updated proposed rule which would raise the annual minimum salary requirements related to “white collar” overtime exemptions of the Fair Labor Standards Act (FLSA).  The DOL proposes increasing the standard salary level to $679 per week, $35,308 annually.  The current standard salary level is $455 per week, $23,660 annually.  All employees not paid the new standard salary level will be deemed non-exempt under the FLSA.

The new proposed standard salary level represents a significant departure from the final rule issued by the DOL in 2016, which was enjoined by a Texas district court, which sought to increase the exempt salary threshold to $913 per week, $47,476 annually. 

Under the new proposed rule, the annual compensation to qualify for FLSA’s “highly compensated employee” (HCE) exemption would increase to $147,414, of which $679 must be paid weekly.  Today, to qualify for the HCE exemption, an employee must be paid at least $100,000, of which $455 must be paid weekly.

The proposed rule allows employers to include non-discretionary bonuses, incentive payments and commissions to satisfy up to 10% of the standard salary threshold.  The 10% may be paid annually.

The DOL’s proposal does not include automatic future increases.  It does suggest a commitment to a periodic review every four years subject to the notice-and-comment rulemaking process.

The DOL does not propose any changes to the duties test.

The proposed rule is pending publication in the Federal Register.  Following publication, the public will have 60 days to submit comments to the DOL.

If you have any questions regarding the proposed rule and how it may impact your business, please contact me or another attorney at Lindner & Marsack, S.C.

LINDNER & MARSACK, S.C., ANNOUNCES 2018 SUPER LAWYER AND BEST LAWYER DESIGNATIONS

Lindner & Marsack, S.C. today announced seven attorneys acknowledged by Super Lawyers magazine. Honorees include Douglas M. Feldman, Daniel J. Finerty, Thomas W. Mackenzie, Gary A. Marsack, Chelsie D. Springstead, Jonathan T. Swain and Oyvind Wistrom. Feldman, Finerty, Mackenzie, Marsack and Swain were also recognized as Best Lawyers by U.S. News & World Report.

“Year after year, we have had several of our team members honored with Super Lawyers and Best Lawyers designations, and it is a recognition we greatly value and appreciate,” said Mackenzie, President of Lindner & Marsack. He added, “This recognition not only highlights the accomplishments of our individual attorneys but speaks volumes about the quality of work provided by the entire firm as we help employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges.”

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.

Similarly, Best Lawyers rankings 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.

LINDNER & MARSACK, S.C. WELCOMES LAUREN MATTHIESEN TO TEAM  

 Lindner & Marsack, S.C., one of the region’s most respected and long-standing management-side labor and employment law firms, today announced Lauren Matthiesen has joined the firm as an Associate. Ms. Matthiesen will focus on defending worker’s compensation claims across a variety of industries. Prior to joining Lindner & Marsack, Ms. Matthiesen was a worker’s compensation defense attorney at Husch Blackwell and an associate attorney at Matthiesen, Wickert & Lehrer, S.C., where she focused on insurance defense and subrogation.

“Our worker’s compensation team has grown steadily in recent years, and Lauren will be a great asset to our clients in delivering efficient and effective representation for employers in all aspects of worker’s compensation defense,” said Thomas Mackenzie, Firm President.

Ms. Matthiesen received her law degree from Marquette University Law School in 2012. While in law school, she did pro bono work for LAMP (the Legal and Medical Partnership) and served as in intern in the Office of the Chief at the Milwaukee Police Department. She completed her undergraduate studies at the University of Wisconsin-Madison, after which she spent a year studying abroad at the National University of Ireland, Maynooth.

Licensed in both the Eastern and Western District courts in Wisconsin, Ms. Matthiesen is a member of CLM (Claims + Litigation Management). In addition to judging Wisconsin’s high school mock trial competition, she volunteers her time at Milwaukee area events including Germanfest and the Wauwatosa’s Farmer’s Market.

EMPLOYEE NOT ENTITLED TO FURTHER WORKER’S COMPENSATION BENEFITS BECAUSE HER DISABILITY-CAUSING SURGERY WAS NOT RELATED TO A COMPENSABLE WORK INJURY

By:      Daniel M. Pedriana and Claudia R. Harke

On August 28, 2018, District I of the Wisconsin Court of Appeals held that the Plaintiff was not entitled to further worker’s compensation benefits because her disability-causing surgery was not related to a compensable work injury.

In Theresa Payton-Myrick v. LIRC, Theresa Payton-Myrick was diagnosed with arthritic changes and degenerative disc disease in her spine. Payton-Myrick was employed as an administrative assistant at the University of Wisconsin-Milwaukee. On July 21, 2009, she fell out of her desk chair and sustained several muscle strains. She subsequently received opinions from several doctors, one of whom recommended a spinal fusion surgery.

Despite conflicting medical opinions, Payton-Myrick underwent surgery, which resulted in multiple procedures and left her “arguably disabled.” Payton-Myrick applied for worker’s compensation benefits. The UW System denied her benefits, which caused Payton-Myrick to file a worker’s compensation claim.

An administrative law judge concluded that Payton-Myrick had “suffered a work-related injury that aggravated Payton-Myrick’s back condition beyond its normal progression” and that “the treatment, including surgery, was necessary and reasonable.”

The Labor and Industry Review Commission (“LIRC”) reversed the ALJ and found that Payton-Myrick’s muscle strains were from a compensable work injury, however, the work injury had healed and did not aggravate her pre-existing condition enough to necessitate surgery. LIRC also made several factual findings including that Payton-Myrick’s disability causing surgeries treated her pre-existing condition, not her compensable work injury.

The Court of Appeals upheld LIRC’s denial of further benefits based on a holding from the Wisconsin Supreme Court in Flug v. LIRC. In Flug, the Supreme Court ruled that Wis. Stat. § 102.42(1m), which states that if an employee who has sustained a compensable injury undertakes treatment in good faith that is medically acceptable, but unnecessary, the employer shall pay for all disability incurred as a result, only applies if the unnecessary, but acceptable surgery is to address the workplace injury.

Since LIRC made a factual finding that Payton-Myrick’s two spinal surgeries were focused on her pre-existing disc problems, not the workplace injury, the Court of Appeals upheld LIRC’s denial of further benefits.

This Decision does not drastically change the law surrounding whether an employee is entitled to further worker’s compensation benefits, however, it reinforces that Wis. Stat. § 102.42(1m) only applies if the unnecessary-but-acceptable surgery was done to address the workplace injury. However, it will be important to have treating and independent doctors specifically note the reason for an employee undergoing an unnecessary-but-acceptable surgery, as that will determine whether they are owed additional benefits.

The time to appeal this decision has passed and the decision remains unpublished.

If you have questions about this decision, please contact Daniel M. Pedriana by email at dpedriana@lindner-marsack.com or Claudia R. Harke by email at charke@lindner-marsack.com or any other attorney with whom you have been working with at Lindner & Marsack, S.C.

THE DEPARTMENT OF LABOR ISSUES TWO NEW ADVISORY OPINION LETTERS ON THE FMLA

By: Oyvind Wistrom

On August 28, 2018, for the first time in almost ten years,  the U.S. Department of Labor’s Wage and Hour Division (DOL) issued two new advisory opinion letters providing employers with guidance on the application of the Family Medical Leave Act (FMLA) to organ donors and a no-fault attendance policy.  While the advisory opinion letters are not binding authority or legal precedent, they signal DOL’s interpretation of the law and provide helpful guidance for employers in handing some interesting nuances of the law.

FMLA Protects Organ Donors

In one of the advisory letters, the DOL concluded that organ-donation surgery can qualify as a “serious health condition” under the FMLA, thus entitling an employee with up to 12 weeks of protected leave.  This is the case even if the employee was in good health before the donation and voluntarily elected to undergo the surgery.  The DOL reasoned that organ-donation surgery may require both “inpatient care” or “continuing treatment” and, therefore, meets the regulatory definitions of a serious health condition.  A serious health condition is defined as an illness or physical condition that requires inpatient care at a hospital.  Since the typical hospital stay after organ donation surgery is four to seven days, organ donation qualifies as a serious health condition.

No-Fault Attendance Policy under the FMLA

In another letter, the DOL addressed a company’s no-fault attendance policy and found that it did not violate the FMLA.  Under the company’s policy, employees accrued points for tardiness and absences, except for certain absences, including FMLA-protected leave.  The points remained on an employee’s record for 12 months, and the employer would extend that period for any time the employee was not in “active service,” such as during an FMLA leave.

The DOL concluded that “freezing” an employee’s attendance points while on FMLA leave did not violate the Act by denying a benefit to the employee who took FMLA leave.  The DOL reasoned that the FMLA does not entitle an employee to superior benefits because of FMLA leave, and the attendance policy placed the employee in the same position as if he or she had never taken leave.  The DOL cautioned, however, that employers must not treat FMLA leave different from other forms of leave.  Thus, the employer must “freeze” an employee’s attendance points for all similar types of leave.

This opinion letter highlights, first, that absences necessitated by an FMLA leave cannot be counted under a company’s no-fault attendance policy.  Additionally, an employer is not required to remove attendance points from an employee on FMLA leave where the employer has an “active service” component to their policy – as long as the company treats other employees on leave for other reasons the same (i.e., vacation, W.C. leave, etc.).

 

 

SUPREME COURT UPHOLDS USE OF CLASS ACTION WAIVERS

By:  Jenna K. Leslie

Yesterday, the Supreme Court of the United States issued a significant victory for employers when ruling that class and collective action waivers in employment arbitration agreements are fully enforceable under the Federal Arbitration Act (FAA) and do not violate an employee’s rights under the National Labor Relations Act (NLRA).

In Epic Systems Corp. v. Lewis (a companion case to National Labor Relations Board v. Murphy Oil USA and Ernst & Young LLP v. Morris), the high court issued a 5-4 decision upholding the validity of class action waivers in arbitration agreements.  Justice Neil Gorsuch, writing the majority opinion, explained that the FAA unequivocally requires federal courts to enforce arbitration agreements according to their terms, and nothing in the NLRA, which was enacted after the FAA, was intended to negate that requirement.  The opinion specifically found that Section 7 of the NLRA focuses on an employee’s right to organize and bargain collectively, but it does not create a right to pursue class or collective action lawsuits.

Writing for the dissent, Justice Ruth Bader Ginsburg called the majority opinion “egregiously wrong” and argued that the NLRA was intended to equalize the power imbalance in most employment relationships by allowing employees to band together through collective action to improve the terms and conditions of their employment.  The majority opinion rejected this notion, concluding that there is nothing in the NLRA that suggests a clear intention to displace the provisions of the FAA.

In recent years, employees have effectively used class and collective action procedures to bring massive wage and hour claims in both state and federal court.  This decision will curb those lawsuits and allow employers to rely on the enforceability of class and collective action waivers and arbitration provisions within their employment agreements.  Class and collective action waivers are useful tools used to preserve confidentiality, resolve claims more quickly, and limit potential exposure to collective action lawsuits.

This decision is said to affect at least 25 million existing employment agreements.  Employers should review their employment arbitration agreements carefully to determine which agreements are affected by this decision.  Employers should also consider whether it makes sense to implement such agreements prospectively, as the decision paves the way for employers to include class and collective action waivers in future employment agreements.

If you have questions about this material, please contact Jenna K. Leslie or  any other attorney you have been working with at Lindner & Marsack, S.C.

We look forward to seeing many of you tomorrow at our 2018 Annual Compliance/Best Practices seminar held at the Sheraton Hotel in Brookfield, Wisconsin.

LINDNER & MARSACK, S.C. WELCOMES DAVID KEATING TO TEAM

Lindner & Marsack, S.C. is pleased to announce the hire of Attorney David Keating.

Keating comes to Lindner& Marsack with significant experience advising clients in the long-term care industry. He served as Chief Legal Officer and Secretary for Fortis Management Group, LLC, where he provided legal advice and assistance on issues relating to resident care, regulatory compliance, reimbursement, fraud and abuse, human resources, labor relations, transactions and other areas affecting client operations. Prior to that, he held several positions over more than a decade with Extendicare Health Services, Inc., eventually serving as that organization’s Vice President and General Counsel.

“David has proven experience navigating complex legal challenges in an industry that is rapidly evolving and significant among Lindner & Marsack’s client portfolio, which will be a great asset to our clients in healthcare and beyond,” said Thomas Mackenzie, Firm President.

Keating is a member of the State Bar of Wisconsin, the American Bar Association and the Legal Committee of the American Health Care Association. He received his J.D. from the Widener University School of Law in Wilmington, Delaware, in 1995.  He also earned a Master of Labor and Industrial Relations from Michigan State University in 1992 and a Bachelor of Arts in Labor and Industrial Relations and Political Science from Pennsylvania State University in 1991.

“Lindner & Marsack’s long history and excellent reputation as a top-tier, management-side labor and employment law firm, along with the firm’s growth in the healthcare sector, make this a great fit,” says Keating. “As a member of the Lindner & Marsack team, I look forward to serving clients in a way that exceeds expectations and delivers proactive, legally-sound strategies and solutions.”