Author Archives: Tara Ingalls

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CHANGES COURSE ON RELEASING EMPLOYER POSITION STATEMENTS TO CHARGING PARTIES

By: Daniel Finerty & Oyvind Wistrom

Employers that have endured the Equal Employment Opportunity Commission’s charge process concerning allegations of discrimination, harassment or retaliation know that an effective, persuasive position statement responding to a charge is critical to securing a successful outcome. For years, employers could be assured that the EEOC would not share its position statement or attachments with a charging party. In doing so, this procedure complied with Section 709(e) of Title VII, which provides:

It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information. Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than $1,000, or imprisoned not more than one year.

Notwithstanding this statute, the Commission announced a reversal of course, as of January 1, 2016, and advised that it intends to release employer position statements:

EEOC has implemented nationwide procedures that provide for the release of Respondent position statements and non-confidential attachments to a Charging Party or her representative upon request during the investigation of her charge of discrimination. … These procedures apply to all EEOC requests for position statements made to Respondents on or after January 1, 2016. … The new procedures provide for a consistent approach to be followed in all of EEOC’s offices, which enhances service to the public. The procedures will also provide EEOC with better information from the parties to strengthen our investigations.

In contrast to this new practice, the Commission will not share the charging party’s position statement with the employer. While the Commission has recognized that employer EEO-1 reports are confidential under Section 709(e) (“[a]ll reports and information from individual reports will be kept confidential, as required by Section 709(e) of Title VII. Only data aggregating information by industry or area, in such a way as not to reveal any particular employers statistics, will be made public.”), it has not explained this new interpretation or how Section 709(e) permits its one-sided disclosure of employer position statements.

The protections for information and documents deemed “confidential” by an employer is limited. The Commission’s clear delineation of the information it will consider confidential is limited to sensitive medical information, social security numbers, confidential commercial or financial information, trade secrets information; non-relevant personally identifiable information of witnesses, comparators or third parties (for example, social security numbers, dates of birth in non-age cases, home addresses, personal phone numbers, personal email addresses, etc.), and any reference to charges filed against the employer by other charging parties. “Sensitive medical information” excludes the charging party’s medical information relating to the investigation. It is critical for employers to consult with labor and employment counsel to correctly categorize confidential information and justify such designation(s) to ensure confidentiality can be secured. “[T]he agency will not accept blanket or unsupported assertions of confidentiality.”

Further, upon receipt of information deemed confidential by an employer, the Commission has indicated that it will not withhold; rather, “EEOC staff may redact confidential information as necessary prior to releasing the information to a Charging Party or her representative.”

Employers need to be mindful of the Commission’s new procedure when responding to EEOC discrimination charges. Confidential information should be withheld (when permissible) or should be designated as “confidential.” Additionally, employers should keep in mind, when drafting position statements, that a charging party or his or her attorney may receive a copy of the position statement and any attachments.

If you have questions about this new practice by the EEOC, please contact Daniel Finerty, Oyvind Wistrom, or your Lindner & Marsack contact attorney at 414-273-3910.

STATUS OF RIGHT TO WORK LAW

By: Thomas W. Mackenzie

We issued an E-Alert on April 13 addressing Right to Work. Since then, a number of clients have asked for further clarity on the status of Wisconsin’s Right to Work law following the issuance of the Dane County decision.

On April 8, 2016, a Dane County Circuit Court judge found unconstitutional the 2015 statute making Wisconsin the 25th Right to Work state.  The law, which took effect on March 11, 2015, prohibited an employer and union to agree in a collective bargaining agreement that employees must be union members.  The trial judge found that because federal law requires unions to represent all employees – union members or not – it is an unlawful taking of property to deny the union fair compensation in the form of union dues for the services the union provides to employees who would choose not to be union members.

The Wisconsin Attorney General (“AG”) appealed the decision to the Wisconsin Court of Appeals late last week. The trial court judge denied the AG’s request for a “stay” pending the appeal.  We here at Lindner & Marsack anticipate that the AG will seek and likely be granted a “stay” from the Court of Appeals.  We also join most experts in predicting that the Dane County court decision will be reversed on appeal.

In the interim, however, employers and employees are left in a quandary in how to proceed. In assessing the issue, employers fall into one of three camps.  If your contract has not expired since the law’s passage in March, 2015 – your union security provision remains lawful.  As your contract expires, you should seek legal counsel on how to approach the issue.  Pending final resolution, unions will resist any argument that mandatory union membership is illegal in Wisconsin.

If your contract already expired and you eliminated all forms of union security from your contract, you need to do nothing. You have no language requiring union membership and your employees are free to choose to be members or refrain from union membership.

If, however, you fall in the third camp and you agreed to so called “snap-back” language that nullified your former union security clause only to the extent prohibited by law, the Dane County decision has put you in a legal gray area. Until the circuit court decision is “stayed” or reversed, you will need a strategy.

First, start with your “snap-back” language and determine whether the union has a claim that the union security clause has been “reactivated.” Second, wait and see how your union reacts.  Some unions may elect not to push the issue until the judicial dust settles.  Third, if your union insists on compliance with the union security which would mean the employer could be required to terminate an employee who fails to meet his or her dues obligation, the failure to terminate could trigger a grievance or an unfair labor practice charge.  Delaying the matter while the grievance or NLRB charge is processed is one option.  There are strong legal arguments that the Dane County decision only applies in Dane County and only applies to the Machinists (IAM), Steelworkers and the AFL-CIO, the plaintiffs in that case.  The other option is to tell your reluctant union member employees that they should keep current on dues while the matter is resolved through the courts.  If the non-members elect to satisfy the asserted dues obligation they might want to pay the union directly rather than using payroll deduction (so called dues checkoff).  Signing a union dues authorization card would obligate the employer to deduct dues for up to a one year period, even if the Dane County decision is reversed.

Again, the issue is put on hold if the Court of Appeals or Wisconsin Supreme Court issues a “stay.” Likewise, it goes away altogether if the Court of Appeals or Wisconsin Supreme Court reverses the Circuit Court.  These are likely outcomes, but until they occur, some unions may push the issue and force some hard choices while the matter plays out in the courts.

If you have questions about anything in this e-alert, feel free to call Tom Mackenzie or any other Lindner & Marsack attorney at 414-273-3910.

 

LINDNER & MARSACK, S.C. ANNOUNCES NEW PRESIDENT, EXPANSION OF LEADERSHIP TEAM

Lindner & Marsack, S.C., one of the region’s most respected and longstanding management-side labor and employment law firms, announced that three attorneys – Daniel Finerty, Chelsie Springstead and Melissa Stone – will join the Firm’s leadership as partners. In addition, Jerilyn Jacobs joins the Firm as a partner. At the same time, pursuant to its long-term succession plan, Thomas Mackenzie has assumed the duties of President of the Firm.

Mackenzie, who has been with the Firm since 1980 and a shareholder since 1985, succeeds Jonathan Swain who has served as President of the Firm since 2007. Swain will continue to serve on the Firm’s leadership team and will be devoting his efforts to serving the Firm’s clients on full-time basis.

“Every law firm needs to constantly adapt to the changing legal landscape and in recognition of this fact we long ago recognized that we needed to develop a succession plan that will continue to guarantee the success we have enjoyed for more than 100 years,” says Swain. “Tom is not only an exceptional lawyer but he is a great leader and cutting edge thinker. It has been an honor to lead this Firm and I am proud to say that the Firm is in good hands going forward.”

Mackenzie is committed to carrying forth the Firm’s long-standing commitment to unparalleled client service, and is looking forward to doing so with the expanded leadership team. “Employers today face a broad and complex scope of legal challenges and considerations,” says Mackenzie. “Our job is to help clients navigate the challenges and find the best path to success. Dan, Chelsie and Melissa, along with the rest of our team and now with the addition of Jerilyn, have a proven record of success in helping clients reach their goals while assessing costs and managing risks along the way.”

Finerty joined Lindner & Marsack, S.C. in 2012 and works with clients to aggressively defend discrimination, retaliation and harassment claims as well as health care retaliation claims under Wisconsin’s Health Care Worker Protection Act and other employment litigation matters. He represents clients in federal, state and tribal and appellate courts as well as in various regulatory agencies such as the Department of Workforce Development’s Equal Rights and Unemployment Insurance Divisions, the Equal Employment Opportunity Commission and the U.S. Department of Labor. Finerty is AV Rated by Martindale Hubbell in Labor and Employment Law, has been recognized with a ‘First Tier’ ranking by Best Lawyers and U.S. News & World Report in the area of Appellate Practice and was selected for inclusion among Wisconsin’s Super Lawyers in 2014 and 2015 and among Rising Stars five times in Employment Litigation – Defense.

Springstead joined Lindner & Marsack, S.C. in 2009. Her practice focuses on worker’s compensation defense, employment defense, subrogation, and Medicare-related issues. Springstead is a frequent speaker and lecturer on worker’s compensation, labor and employment law, and Medicare-related topics, and also provides training to employers and insurance carriers in these areas. She has been recognized as a Rising Star by Super Lawyers each year since 2013.

Stone joined Lindner & Marsack, S.C. in 2012, but has been exclusively practicing worker’s compensation defense and § 102.29 Wis. Stats. subrogation for nearly a decade. In her practice, she represents insurance carriers and self-insured employers, providing legal guidance and counsel on highly complex fact and legal issues 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.

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.

Lastly, Lindner & Marsack is welcoming Jerilyn Jacobs as the Firm’s newest partner. With an extensive background in employment related litigation, Jacobs is a 1998 graduate of Cornell Law School and had previously been with the Gonzalez Saggio & Harlan firm since 2005. Her practice focuses on defending employers in discrimination, harassment, tort, and contract lawsuits before federal and state courts and administrative agencies and counseling employers on complex day-to-day issues, compliance with federal, state and local laws, and best practices. Jacobs also defends plan administrators, insurers, and employers in ERISA litigation matters in federal court.

Amendments to the Wisconsin Worker’s Compensation Act Effective March 2, 2016!

By: Chelsie D. Springstead

The much-anticipated changes to the Wisconsin Worker’s Compensation Act were signed by Governor Walker on February 29, 2016 and went into effect yesterday – March 2, 2016! Please see the Act 180 Statutory Language and Act 180 Plain Language Summary of the bill which is now in effect.   I have summarized a few of the major changes below:

  • Maximum weekly PPD rate for injury dates of 3/2/16 to 12/31/16 are increased to $342, and for injury dates of 1/1/17 or later are increased to $362
  • Reduce the statute of limitations for traumatic injuries with a date of injury of March 2, 2016 or later from 12 years to 6 years (please note that the statute of limitations for occupational injuries remains unchanged)
  • Allow apportionment of permanent partial disability for traumatic injuries based on causation (does not apply to occupational injuries). Practitioners (both treating doctors and IME doctors) shall address the issue of causation of the permanency to include a determination of the percentage of permanent disability caused by the work event and the percentage attributable to other factors
  • Minimum PPD ratings will be reviewed and updated every 8 years by a medical advisory committee
  • Eliminate indemnity and death benefits to workers who violate an employer’s drug and alcohol policy if the use of the drugs/alcohol are shown to be the cause of the injury
  • Allow the employer/carrier to deny temporary disability benefits if a worker is brought back to work on light duty while in a healing period and they are subsequently fired due to misconduct or substantial fault (please note that ‘misconduct’ and ‘substantial fault’ are defined in the Unemployment Compensation Act, Wis. Stat. Sec. 108.04)
  • Allow prospective orders for vocational retraining

The Lindner & Marsack Worker’s Compensation Defense Team is presenting more information on this topic at our upcoming half-day Spring Symposium being held on Thursday, March 10, 2016. Please see the 2016 Spring Symposium Invitation flyer for more information on this complimentary seminar. Register today!

Additionally, our Worker’s Compensation Defense Team is offering individualized training for employers and insurance carriers regarding the statutory changes and how they will affect your day-to-day handling of claims. Please contact us for more information or to schedule training.

You are Invited! 2016 Worker’s Compensation Spring Symposium

Register Now for the 5th Annual Worker’s Compensation Spring Symposium!

The Lindner & Marsack worker’s compensation team has been recognized by U.S. News and World Reports as one of the nation’s preeminent worker’s compensation defense practices. You now have the opportunity to join our first tier ranked team for a half-day morning worker’s compensation seminar we are conducting on March 10, 2016, at the Country Springs Hotel in Pewaukee, Wisconsin.

Our fifth annual symposium will discuss several hot topics in worker’s compensation including psych claims, return to work options and the major changes to the Wisconsin worker’s compensation system. Click here for more information.

Whether you are an insurance adjuster, safety manager or human resources professional, don’t miss this opportunity to learn about the latest developments in worker’s compensation that could affect your bottom line.

Be sure to register soon for this FREE event on the attached invitation or by emailing Chelsie Springstead at cspringstead@lindner-marsack.com.

Register Now! Annual Compliance/Best Practices Update

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

WHEN: April 14, 2016

8:00 a.m. – 12:00 p.m.

WHERE: Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

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

SESSION TOPICS INCLUDE:

  • Labor Law Update: Including Recent NLRB Decisions, Right to Work and Collective Bargaining Trends
  • 2016 Employment Law Update
  • FMLA Update – A Best Practices Review
  • The Use of Temporary Workers in 2016 – A Panel Discussion
  • Update on Proposed Wisconsin Worker Compensation Act Reform
  • Winning Strategies in Defending Worker Compensation Cases – How to Avoid Early Mistakes in Investigating Claims

THE SUPREME COURT DENIES ERISA PLAN’S RIGHT TO REIMBURSEMENT

February 10, 2016

By: Jenna K. Leslie

On January 20, 2016, the U.S. Supreme Court decided that a self-funded ERISA plan could not seek reimbursement for health insurance benefits from a participant who prevailed in a lawsuit against a third party if the settlement or award had been spent or comingled into the participant’s general assets.

In Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, Montanile was a participant of a self-funded group health plan. The plan paid Montanile’s medical expenses following a motor vehicle accident. Montanile signed a reimbursement agreement confirming his obligation to reimburse the plan from any third party recovery.

After negotiating a $500,000 settlement, the participant’s attorney attempted to contact the plan with an offer. The offer gave the plan 14 days to respond. When the plan did not respond, Montanile’s attorney released the settlement funds to him.

Six months later, the plan sued Montanile seeking repayment of their lien for the payment of medical expenses on his behalf. The plan asked the District Court to enforce an equitable lien on any settlement funds or any other property in the Montanile’s possession. Montanile argued that because the settlement funds had been spent or comingled with other assets, enforcing a lien against his general assets was not “equitable relief” which the plan could pursue.

The U.S. Supreme Court agreed, ruling that a self-funded ERISA plan could not make a claim against a participant’s general assets. The Court emphasized that the plan’s remedy was limited to equitable relief under ERISA, which does not include recovery against a participant’s general assets. The plan could only recover from identifiable settlement funds within the participant’s possession and control.

The Montanile decision is significant for employers who sponsor self-funded ERISA plans because it demonstrates the difficulty of plans to recover payments. Employers should review the language of their ERISA plans to ensure that the plans allow them to recover reimbursement of medical expenses. Employers should insist the participant sign a reimbursement agreement, which includes specific language regarding the participant’s obligation to obtain the written consent of the plan before the release of any settlement funds. In addition, the plan’s administrative staff should be trained and monitored to assure their timely response to any notice of a settlement or its distribution.

If you have questions about this material, please contact Jenna K. Leslie by email at jleslie@lindner-marsack.com or any other attorney with whom you have been working here at Lindner & Marsack, S.C.

SAVE THE DATE FOR OUR ANNUAL COMPLIANCE/BEST PRACTICES SEMINAR!

Please mark your calendar for Lindner & Marsack, S.C.’s Annual Compliance/Best Practices Seminar!

WHEN:         April 14, 2016

8:00 a.m. – 12:00 p.m.

WHERE:       Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

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

SESSION TOPICS INCLUDE: 

  • Labor Law Update: Including Recent NLRB Decisions, Right to Work and Collective Bargaining Trends
  • 2016 Employment Law Update
  • FMLA Update – A Best Practices Review
  • The Use of Temporary Workers in 2016 – A Panel Discussion
  • Update on Proposed Wisconsin Worker Compensation Act Reform
  • Winning Strategies in Defending Worker Compensation Cases – How to Avoid Early Mistakes in Investigating Claims

Watch your inbox as well as our Facebook, LinkedIn and Twitter pages for more detailed information about session topics and a link to register for this free seminar.

NEW PAY TRANSPARENCY RULES ARE NOW IN EFFECT FOR FEDERAL CONTRACTORS

By: Laurie A. Petersen and Samantha J. Wood

On January 11, 2016, the final rule implementing Executive Order 13665 went into effect. This rule makes it unlawful for federal contractors to discharge or discriminate in any manner against any employee or job applicant because such employee or applicant has inquired about, discussed, or disclosed his or her compensation information or has inquired about, discussed, or disclosed another employee or applicant’s compensation information.

This rule applies to any business or organization that (1) holds a single federal contract, subcontract, or federally assisted construction contract in excess of $10,000; (2) has federal contracts or subcontracts that have a combined total in excess of $10,000 in any 12-month period; or (3) holds government bills of lading, serves as a depository of federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount. While in effect now, the rule will apply to these employers once they enter into a new covered federal contract or subcontract or modify an existing covered federal contract or subcontract on or after January 11, 2016.

In accordance with this rule, contractors are prohibited from having policies or practices that prohibit or tend to restrict employees or applicants from discussing topics such as: salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement. Contractors must revise handbooks, confidentiality agreements, employment agreements, or other work rules and policies that restrict discussing compensation information.

The rule also requires federal contractors to do the following:

  1. Post the Pay Transparency Nondiscrimination Provision either electronically or in a conspicuous location in the workplace where it can be seen by employees and applicants. This provision can be found at  http://www.dol.gov/ofccp/PayTransparencyNondiscrimination.html
  2. Incorporate the Pay Transparency Nondiscrimination Provision into existing manuals or .employee handbooks, and disseminate the updated manuals or handbooks.
  3. Post the updated “EEOC is the Law Poster” when it becomes available. In the interim, post the “EEOC is the Law Poster Supplement,” available at http://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm
  4. Ensure that all contracts entered into or modified after January 11, 2016, contain a revised equal opportunity clause. If the contract incorporates 41 C.F.R. § 60-1.4, by reference, no changes are necessary.

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.

2016 Worker’s Compensation Gamble

Lindner & Marsack’s worker’s compensation defense practice is well recognized as an industry leader in providing work injury defense services to many of Wisconsin’s largest employers and insurance carriers.

Doug Feldman heads the Firm’s highly regarded work injury defense team and is a founding Board Member and current President of Kids’ Chance of Wisconsin. Kids’ Chance is a non-profit organization that provides scholarships to children of seriously injured workers in Wisconsin.

Kids’ Chance of Wisconsin is presenting a complimentary half-day worker’s compensation seminar on February 25, 2016 at Potawatomi Hotel and Casino, followed by a networking cocktail hour and silent auction. Funds raised at the event will directly support the Kids’ Chance mission of providing financial support, in the form of scholarships, to children of parents who have been seriously injured at work.

If you are interested in attending this event, click here for more information.

Lindner & Marsack owes much of its success to its good friends and clients in Wisconsin and is proud to be able to support this worthy endeavor and give back to the community in such a meaningful way. We hope you will consider joining us for this educational opportunity.