Monthly Archives: March 2015

Registration is Still Open!

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

April 28, 2015

8:00 a.m. – 12:00 p.m.

Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road, Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits and worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

With Same-Sex Marriage Permissible In Many States, Plan Sponsors Should Clarify the Rights Of Affected Children

By: Alan M. Levy and John E. Murray

Two years ago, in United States v. Windsor, the U.S. Supreme Court held that the Defense of Marriage Act (“DOMA”) is unconstitutional in its requirement that “marriage” be defined as restricted to heterosexual couples.  After that, regulations were issued which treated same-sex married couples as entitled to the same federal benefits and rights as opposite-sex couples, such as joint tax returns, classification of dependents for health and retirement benefits governed by federal law, and FMLA rights.  Now, either by legislation or judicial determination, 37 states and the District of Columbia permit the same treatment as the federal rule.

Recently, several ramifications of these rules have become apparent.  For example, if a health plan covers dependents of employees, the child of an employee’s same-sex marriage is a dependent.  Similarly, an employee’s same-sex spouse is entitled to a survivor pension, which includes both payment upon the employee’s death and the requirement of the spouse’s written agreement if the employee declines joint and survivor benefits to maximize the retirement benefit during his/her own lifetime.

Some plans may be able to provide these spousal and dependent benefits under their present language.  Others may require amendments to plan documents and summary plan descriptions.  While some issues about same-sex marriage are scheduled for Supreme Court consideration this term, that case will not affect the federal rules which limit the application of DOMA to ERISA plans.

Plan administrators and fiduciaries are encouraged to review their programs and make all necessary modifications to comply with these rules.  If there are any questions about the rules, existing benefit documents, or practices, please contact Alan Levy or John Murray here at Lindner & Marsack, S.C.  We will be happy to assist you in this activity.

Supreme Court Alters Pregnancy Accommodation Requirements for Employers

By Kristofor L. Hanson

The U.S. Supreme Court on March 25, 2015, issued a decision that alters the landscape for employers under the Pregnancy Discrimination Act (“PDA”).  In the decision, the Court held that employers are now required to assess their ability to accommodate a pregnant employee’s restrictions in a manner consistent with efforts to accommodate other employees under similar restrictions.

The case, Young v. UPS, Inc., No. 12-1226 (March 25, 2015), involved a pregnant UPS employee, Peggy Young, whose pregnancy restricted her lifting to 20 pounds, then again to 10 pounds, as her pregnancy progressed.  Her job required her to lift items as heavy as 70 pounds and to assist in moving packages weighing up to 150 pounds.  UPS had a policy that called for light duty assignments for employees injured on the job, employees with suffering from conditions that qualified as disabilities under the Americans with Disabilities Act, and for those employees who had lost their Department of Transportation license.  Young sought an accommodation similar to those the company had provided for employees with similar restrictions.  UPS said that she was not entitled to an accommodation because pregnancy did not fall within one of the three categories for which it provided accommodations.

The District Court dismissed Young’s case, determining that UPS’s decision complied with the PDA, because Young could not demonstrate that she was “similarly situated” to employees in the three categories for whom UPS provided accommodations: 1) she was not injured on the job; 2) she was not legally restricted from working like those who lost or had suspended their DOT certifications; and 3) she was not disabled under the law.  The 4th Circuit Court of Appeals upheld the District Court’s decision and stated that Young more closely resembled “an employee who injury his back while picking up his infant child or . . . an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter,” neither of whom would qualify for an accommodation under UPS’s policy.

Young presented facts that showed that UPS was able to accommodate other employees who had lifting restrictions similar to hers.  She also presented evidence that other employees had indicated they were willing to assist her with lifting and moving packages.  In addition, a shop steward testified that UPS had no issues with accommodating employees except when a pregnancy situation arose.

The PDA provides, in relevant part, that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”  The Supreme Court’s analysis determined that this language is intended to provide pregnant women with accommodations provided to other employees who are similarly limited in their work.  Because Young provided evidence that other employees with similar restrictions were regularly accommodated by UPS, the Supreme Court overturned the lower courts and remanded the case.  The District Court will now analyze whether Young presented sufficient evidence to move her case beyond summary judgment under the new standard articulated by the Supreme Court.

The decision places an onus on employers to treat a pregnant employee as they treat other employees who have restrictions similar to the pregnant employee.  Previously, employers were not required to do that.  Rather, employers could limit accommodations as UPS did.  Employers must now analyze pregnant employees’ restrictions on a case-by-case basis to determine whether they are offering accommodations to other employees with like restrictions.  If they are, employers should do the same for pregnant employees.  As the Supreme Court asked, “[W]hen the employer accommodated so many, could it not accommodate pregnant women as well?”  According to the Supreme Court, the answer to that question could very well be, “Yes.”

If you have questions about this material, please contact Kristofor Hanson by email at khanson@lindner-marsack.com or by phone at (414) 273-3910, or any other attorney you have been working with here at Lindner & Marsack, S.C.

Understanding How the New NLRB Election Rules Affect Your Organization

By:  Jonathan T. Swain

Beginning April 14, 2015, the new NLRB election rules will take effect.  They promise to have a profound effect upon an NLRB election process that has remained relatively unchanged for the last 75 years.

If unions are able to take advantage of these new rules, which are designed to expedite the election process, they may be able to engineer the first successful resurgence in organizing in our time.  Those who say organized labor is on its last legs may be proven right, but these new rules are designed to give union organizing a renewed spring to its step.

If these new rules are designed to make union organizing easier, are there steps that employers can take to increase their odds of remaining union-free?  The answer is yes!  Here’s how:

It’s all about the calendars

Under the old rules employers had about six (6) weeks (39 days on average) from petition to vote to respond to an organizing effort.  Since employers enjoy broad free speech rights to lawfully discuss the issue of unionization during this time, the facts are that once fully informed of what it means to be in a union, how bargaining really works, the costs of union membership and loss of their workplace independence, employees often rejected the union’s solicitations.  Since unions and the NLRB can’t silence free speech with new laws or regulations, the one thing they can do is limit its opportunity.

Therefore, the new regulations seek to shorten the time from petition to election, to a two (2) to three (3) week period, instead of the current six (6) weeks.

This will act to substantially limit the opportunity for the traditional employer communications, including factual handouts, informational meetings, questions and answers and a review of the union’s record.

What do the new rules provide for?

  • Expedited pre-election hearings.
  • Pre-hearing employer position statements in which the employer waives any issues not raised one day before the hearing.
  • Delaying voter eligibility questions until after the vote.
  • Expanded employee information provided to unions, including employee email addresses and phone numbers, if known.
  • Greater NLRB control over the place, date and time of the election.

What can a proactive employer do?

As we know, if a union can get at least thirty percent (30%) of the employees to sign authorization cards [it almost always waits until it has over sixty percent (60%)] it can petition for an election. The key is to act now to make a union unnecessary to your employees, while at the same time taking advance steps to prepare for a drive should it come.

What to do?

  1. Review your handbooks, rules, policies and overall employee relations approach. Are they lawful, fair and understandable? Do employees have an outlet for complaints and problem-solving? Will your rules and policies pass muster with the NLRB?
  2. Train, train, train. The best defense against employee dissatisfaction is well trained supervisors and managers. If they are good managers and leaders of people, employees will follow, as will organizational success.
  3. Vulnerability assessment. Review not only policies and managers, but how employees view your organization on a variety of fronts, such as wages, benefits, communications and the like. Employees want to feel a part of their organization.
  4. Action plan. Just as you have a disaster response plan for fires, severe weather or civil unrest, have one for the union drive. Be ready to respond immediately and have a broader plan ready to put into action. Be sure to have it preapproved by labor counsel.  The old motto of “be prepared” certainly applies and the employers that take it to heart will continue to be in the best position possible to avoid a union’s efforts to organize its employees.

The old motto of “be prepared” certainly applies and the employers that take it to heart will continue to be in the best position possible to avoid a union’s efforts to organize its employees.

 

 

Registration is now open for our Annual Compliance/Best Practices Seminar!

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

April 28, 2015

8:00 a.m. – 12:00 p.m.

Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits and worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.

SESSION TOPICS INCLUDE:

  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

Restrictive Covenant Reform Proposed for Wisconsin

On March 5, 2015, Senate Bill 69 (bill) was introduced by Senator Paul Farrow (R-Pewaukee). If passed by the Wisconsin legislature and signed by the Governor, the bill would eliminate the current version of Wisconsin’s restrictive covenant law, Wis. Stat. § 103.465. The statute applies to agreements with employee such as non-competition, non-solicitation and non-disclosure agreements. In its place, the bill would establish a new pro-enforcement stance toward restrictive covenants. Wisconsin has consistently rated among the weakest restrictive covenant enforcement states for some time; by contrast, Illinois is routinely rated among the top pro-enforcement states. The bill would place Wisconsin among the states with the best enforcement statutes, likely in front of Illinois. Specifically, the bill:

  • Clarifies existing Wisconsin law by defining the legitimate business interests that justify a restrictive covenant to include a business’s trade secrets, confidential information, its relationships with existing and prospective customers, its customer, patient, or client goodwill associated with a specific geographic location, and unique, extraordinary, or specialized training provided by business as a result of the employment relationship, among other things.
  • Clarifies that “valid consideration” for a restrictive covenant includes the continuation of an employment relationship.
  • Provides greater clarity regarding the enforceable duration of a restrictive covenant.
  • Authorizes a court to modify an overly broad and otherwise unenforceable restrictive covenant to the extent reasonably necessary to protect an established legitimate business interest. Wisconsin courts do not currently have that right, for the most part, once it finds that a restrictive covenant is overbroad. Under the bill, a court is invited to tailor a reasonable restriction under the facts presented even where the restrictive covenant is overbroad.
  • If the bill is passed by the legislature and signed by the Governor, it would first apply to any restrictive covenant that a business enters into, extends, modifies or renews following the effective date. It would not impact existing restrictive covenants. Accordingly, businesses in the process of updating or rolling out new restrictive covenants for their employees may want to reconsider in light of this bill. Restrictive covenants that are signed between now and the effective date of the new law, if passed, will be considered by Wisconsin courts under the existing law which treats such covenants more harshly than the proposed new law.

Watch for future E*Alerts as this important legislation affecting Wisconsin businesses progresses. If you have questions about the restrictive covenant bills, please contact Daniel Finerty at 414-226-4807, or any other Lindner & Marsack attorney at 414-273-3910.

USCIS Extends Eligibility for Employment Authorization to Certain H-4 Dependent Spouses of H-1B Nonimmigrants

On February 24, 2015, U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS) issued final amended regulations, revising 8 C.F.R. Parts 214 and 274a.  The revised regulations extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status.  Eligible individuals include H-4 dependent spouses of H-1B nonimmigrants who either (1) are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or (2) have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000.

H-4 dependent spouses may file Form I-765, Application for Employment Authorization, with supporting evidence and the required fee beginning on May 26, 2015.  Forms I-765 may be filed concurrently with an Application to Extend/Change Nonimmigrant Status (Form I-539).

If you have questions about this material, please contact Laurie A. Petersen or Samantha J. Wood by email at lpetersen@lindner-marsack.com or swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

Wisconsin Right to Work Legislation

NOTICE OF BREAKFAST MEETING

WHEN:         Wednesday, March 11, 2015

TIME:           8:30 a.m. to 9:45 a.m.

WHERE:       411 E. Wisconsin Avenue; 12th Floor Meeting Room

As a courtesy to our clients, Lindner & Marsack will be presenting a discussion of the new Wisconsin “right to work” legislation.

We will discuss when it takes effect, how it will work, what it means for unionized employers in Wisconsin and its impact on their employees.  This new legislation is expected to be in effect by early March so you will not want to miss this important presentation.

We will also briefly discuss the impact of the NLRB’s new quickie union election rules which take effect April 1, 2015.

There is no charge for this breakfast meeting.  Please register by sending an email to Mary Gemeinhardt at mgemeinhardt@lindner-marsack.com.

Parking is available in the attached parking garage.  The parking entrance to the 411 building is on N. Jefferson Street.  You may park in the visitor parking area or any other available unreserved space.  Please bring your ticket to the meeting for validation.