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.

National Worker’s Compensation Defense Network Seminar – September 26, 2019 in Chicago

Lindner & Marsack, S.C. is well recognized both locally and nationally for its workers’ compensation defense practice. Our work injury defense team routinely represents many of the state’s largest employers and insurance carriers and has developed a reputation of excellence throughout the workers’ compensation industry. Lindner & Marsack is one of the founding members of the National Workers’ Compensation Defense Network (NWCDN) and Douglas Feldman, the managing partner of our workers’ compensation practice, sits on the Board of Directors of the NWCDN. Additionally, two of our partners, Chelsie Springstead and Melissa Stone, serve as members of the planning committee for this year’s seminar, which features cutting edge topics geared towards helping your companies manage your workers’ compensation programs. More information on this highly respected industry organization can be found by visiting their website at www.NWCDN.com.

The NWCDN is pleased to announce its 2019 Fall seminar, returning this year on September 26, 2019, to beautiful downtown Chicago, Illinois. Join us at our cocktail reception on September 25, 2019 from 6:00 p.m. – 8:00 p.m. at The Intercontinental Hotel (located at 505 N. Michigan Avenue). The seminar kicks off on September 26, 2019, also at the Intercontinental Hotel, with registration at 8:00 a.m. As always, our topics are geared towards the practical realities of claims management with a focus on implementing best practices and learning from experienced professionals. Topics this year include:

– The Ethical Challenges of Anti-Engagement

– Exploring Advocacy-Based Claims Management

– The Impact of Medical Marijuana

– The Guo Technique: Thread Carpal Tunnel Release

– Our famous “break-out” sessions with state-specific panels focused on challenges and trends in 2019

There is no cost for attending this exciting event but space is limited so we encourage you to register early. Please visit the website to REGISTER NOW for the conference at www.nwcdn.com. Don’t miss out on this opportunity to obtain current state-by-state information from workers’ compensation attorneys throughout the country. 

For more information on Lindner & Marsack’s Work Injury Defense team, feel free to contact any member of our practice group. We look forward to seeing many of you at this exciting upcoming industry event.

SUPREME COURT LIMITS USE OF CLASS ACTION ARBITRATIONS

By:  Alan M. Levy

On April 24, 2019 the United States Supreme Court held that an employee cannot expand an individual claim to a class action arbitration unless both parties have explicitly agreed to that process.  Arbitration is created by contract; the parties must agree to waive their statutory right to have a court determine whether their employment contract or other relationship terms were breached.

In recent years the courts have held that an employee who is not subject to a union contract can be required to arbitrate a personal dispute pursuant to an employment contract, acceptance of a company rule, or other form of agreement instead of taking their claim to a court or to an agency such as the EEOC.  At the same time, some employee claims have been presented on a class-wide basis, the complainant arguing that a significant number of fellow employees all had the same issue, such as the method for calculating overtime or obtaining a promotion.  These complainants often argued that individual arbitrations were not economically viable for employees, and that the same remedy should apply to all similarly situated employees.  What had been described as a speedy, inexpensive dispute-resolution process through arbitration for individuals could become a full-scale class action lawsuit if the single employee could expand the potential remedy this way.

In Lamps Plus, Inc. v. Varela, the United States Supreme Court held 5-4 that claims by individual employees could not be expanded into class arbitrations unless the arbitration agreement (typically in the person’s employment contract) specifically provided that the larger process was permissible.  The Court found that the shift from individual to class arbitration was such a “fundamental change” that it “sacrifices the principal advantage of arbitration” and “greatly increases risks to defendants.”

The employee had argued that the parties’ agreement to arbitrate was ambiguous and any choice of process possible under that ambiguity should be interpreted against its author – the party that had drafted the (employment) agreement requiring arbitration to the exclusion of court or agency actions.  Chief Justice Roberts stated for the majority that “Arbitration is strictly a matter of consent,” and an affirmative agreement to both the subject-matter and the procedure for arbitration is necessary to require use of that process.  A class arbitration is fundamentally different from the individualized form envisioned in the Federal Arbitration Act; class arbitration “sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.”  Use of this process requires an affirmative “contractual basis for concluding that the party agreed to do so,” and silence or ambiguity in the language of the underlying agreement to arbitrate cannot be taken as that affirmative consent to this expanded process.

This decision reiterates the contractual basis and limits of arbitration.  Waiving the right to court or agency decision-making and accepting the determination of a private arbitrator require the affirmative consent of a clear contract to do so.

Should you have any questions about the elements of a binding arbitration agreement, its implementation, and its scope, please contact one of the attorneys here at Lindner & Marsack, S.C.

A CLEARLY WRITTEN PLAN DOCUMENT PROTECTS THE PLAN’S ADMINISTRATOR FROM A FIDUCIARY BREACH

By:  Alan M. Levy

What happens when employee benefit plan participants are not accurately informed of their rights?  Who is liable for an error or a failure to inform a participant or beneficiary about their eligibility for benefits?  The best protection for a plan fiduciary is often a clear, well-written current plan document.

Employers sponsor employee benefit plans and typically appoint an owner or management official to be the plan’s official administrator.  Insofar as that party controls collection, investment, or disbursal of a plan asset, he/she is a fiduciary.  Third party administrators (“TPAs”) who perform day-to-day plan operations dealing with participants typically insist on administrative agreements which state that the plan sponsor – not the TPA – is the fiduciary who must act “with an eye single for the interest of the participants and beneficiaries.”  Donovan v. Bierwirth, 680 F.2d 263, 271 (2nd Cir. 1962); ERISA, § 404(A)(1).  A fiduciary risks personal liability if he/she causes a loss to a participant or beneficiary by failing to act “in accordance with the documents and instruments governing the plan.”  ERISA, § 404(a)(1)(D).  Two recent appellate decisions relied on adherence to those plan documents in dismissing breach of fiduciary duty allegations that participants and beneficiaries were not adequately informed of their benefit rights.

In Vest v. Resolute FP US Inc., 905 F.3d 985 (6th Cir. 2018) the United States Court of Appeals for the Sixth Circuit explained that a fiduciary may breach his/her duty to disclose plan benefits and rules if “(1) an early retiree asks a plan provider about the possibility of the plan changing and receives a misleading or inaccurate answer or (2) a plan provider on its own initiative provides misleading or inaccurate information about the future of the plan or (3) ERISA or its implementing regulations required the employer to forecast the future and the employer failed to do so.”  Id. at 987.  The surviving beneficiary in that case alleged a fiduciary breach because neither the TPA nor the fiduciary informed the deceased employee that he had a right to convert his group life insurance coverage to an individual policy when he ceased employment.  The case was dismissed, in part, because the plan’s summary plan description gave sufficiently clear information to satisfy any notification obligation.

In DeRogatis v. Bd. of Trustees of the Welfare Fund of the IUOE Local 15, 904 F.3d 174 (2nd Cir. 2018), the Second Circuit reached a similar conclusion.  The widow of a deceased employee alleged that two “non-fiduciary, ministerial employees” on the plan staff had given her husband incorrect information, causing her to receive less than maximum survivor benefits.  Therefore, she claimed, the individual trustees should be held liable for a breach of their fiduciary duty because they failed to adequately supervise the plan employees’ work.  The court rejected the trustees’ defense that they could not be liable for any unintentional misrepresentations made by the non-fiduciary administrative staff, but went on to rule against the widow because the:

“summary plan description (“SPD”) clearly communicated the eligibility requirements for the various pension and survivor benefits available . . . thereby satisfying the . . . fiduciary duty to provide complete and accurate information.”

Id. at 179.

These cases demonstrate the importance of clear, accurate, and timely plan documents.  Whether or not the TPA or the office staff fail to explain rules and procedures fully and correctly, the participants and beneficiaries may and must rely on the information in the plan documents.  So long as the documents received by the participants are clear and correct, the fiduciaries have satisfied their obligation and should not be personally liable for any misunderstanding about the documents’ statement of rights.

Should you have any questions about the obligations, duties, and protections of a plan fiduciary, or should your employee benefit plan documents need an update or a review, please contact me or another attorney here at Lindner & Marsack, S.C.

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.