Author Archives: Tara Ingalls

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.

 

New Lease Anchors Lindner & Marsack in Downtown Milwaukee through 2023

With the recent signing of a new lease, Lindner & Marsack will remain in our current downtown Milwaukee location through at least 2023. The Firm has been located at 411 East Wisconsin Avenue, a 30-story, Class A office tower, since 1989, and has occupied its current space on the 18th floor since 2003. The building is located at the heart of Milwaukee’s Central Business District.

“We did explore a few other downtown options and even considered a more suburban location, but at the end of the day this space has served us and our clients very well,” says Jonathan Swain, President of Lindner & Marsack. “There have been many changes in how we work and communicate with clients in recent years, and we’re excited about how this space is adapting and functioning to accommodate our needs for today as well as tomorrow.”

Along with the significant lease extension will come updates and enhancements to foster more collaboration and streamline the technological needs of today’s legal workplace. Updates include renovations to add more flexible meeting and gathering spaces, as well as upgrades to IT infrastructure to make technologies such as web and video conferencing easily accessible and seamless.

The enhancements to the suite tie in well with building owner Riverview Realty Partners’ ongoing $15 million dollar renovation to modernize and enhance the common areas of the building. A new business lounge, a state-of-the-art conference room, modernized dining area, upgrades to the lobby and elevator cabs and the expansion of the 35,000 square foot Wisconsin Athletic Club will further contribute to the goal of meeting the needs of the current legal workforce.

“In 2023, we’ll mark our 115th year as the pre-eminent Wisconsin boutique law firm practicing management-side labor and employment law,” says Swain. “Our continuing presence at 411 East Wisconsin Avenue is really a testament to the stability and longevity of the Firm.”

Awaiting The Implementation Of The Overtime Regulations…

By: Laurie A. Petersen and Samantha J. Wood

Employers continue to question when the Department of Labor (“DOL”) will finalize the changes to the Fair Labor Standard Act’s overtime regulations. Because the comment period ended on September 4, 2015, it was previously expected that the DOL would issue a final rule in early 2016.

However, last month at a Labor and Employment Law Conference, the Solicitor of Labor, M. Patricia Smith, stated that the DOL likely will not issue its final rule until late 2016. This is because the DOL must sift through approximately 270,000 comments that it received during the proposed rule’s commentary period (three times the amount of comments received in 2004 when the overtime rules were last updated).

Because the estimated timing of the final rule may coincide with the 2016 election, political commentators have suggested that the election may have an effect on the rulemaking process. For instance, if the proposed rule is implemented just prior to the election, it may be used as a campaign platform. Because of the uncertainties of an election, the current administration may impose a very short window of time for the rule to take effect (30-60 days) to ensure the rule is not reversed by the next administration. If the rule is not finalized or effective prior to a new administration, it is possible that the rule could be delayed or substantially changed.

Irrespective of the possible effects the election may have on the final rule, employers should plan and develop a strategy in the event the proposed rule will takes effect in Q3 or 4 of 2016. In their 2016 planning strategies and budget considerations, employers should analyze which employees will and will not be affected by the proposed changes, and should determine the appropriate steps to ready compliance should the rule take effect. Employers may choose to increase employee salaries to meet the new salary level threshold (estimated to be $970/week) or may reclassify employees from exempt to non-exempt. If the employer chooses to reclassify its employees from exempt to non-exempt, it will also need to consider the impact of overtime pay, the impact on employee morale, options to avoid overtime pay (such as hire additional staff), and implementation and communication of time-keeping policies.

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.

Lindner & Marsack Successfully Represents Local School District in Federal Court

As labor and employment attorneys, we often sound like broken records in counselling our clients on the importance of documenting the performance deficiencies of poor performing employees. It cannot be overstated how compelling strong and contemporaneous documentation can be to demonstrate the actual reason an employer disciplines, demotes or terminates an employee who is not performing to the employer’s legitimate expectations. A recent lawsuit filed by a former African American principal at the Oak Creek-Franklin Joint School District provides another vivid illustration.

The plaintiff was a previous principal at one of the elementary schools within the school district. Following her removal from her position, she filed a lawsuit in U.S. Court for the Eastern District of Wisconsin claiming that her removal from the district was motivated by her race, as well as in retaliation for her opposing discrimination in the workplace and raising concerns that she claimed were protected by the free speech guarantees of the First Amendment. While the federal district judge dismissed her race discrimination claim prior to trial, her claims of unlawful retaliation under both Title VII and the First Amendment were tried to a jury earlier this week.

At trial, Oyvind Wistrom represented the school district. Using the district’s detailed and contemporaneous documentation of the performance concerns, we were able to successfully show the jury that her complaints of discrimination and protected speech were not the reasons for the principal’s removal. We showed that her removal would have occurred regardless of her complaints and protected speech. After more than two days of testimony, it took the jury less than one hour to determine that the school district was justified in taking the steps it took to remove the principal. The successful defense of this case could not have happened without the testimony of several key district employees and the presence of clear and contemporaneous performance documentation by the school district.

2015 Super Lawyers

Lindner & Marsack, S.C. proudly announces that nine of its seventeen attorneys have been acknowledged as 2015 Super Lawyers or Rising Stars by Super Lawyers Magazine. While the designation of Super Lawyer is reserved to only the top 5% of lawyers in the State of Wisconsin, this represents the third consecutive year in which over one-half of the attorneys in the firm have been recognized by Super Lawyers. The individual attorneys recognized as Super Lawyers in 2014 included Douglas Feldman, Daniel Finerty, Thomas Mackenzie, Gary Marsack, John Murray, Jonathan Swain and Oyvind Wistrom. The list of Rising Stars (under 40 years old or less than ten years of practice) included Chelsie Springstead and Kristofor Hanson.

Major Changes to the Wisconsin Worker’s Compensation System Ahead!

By: Chelsie D. Springstead

The Wisconsin Worker’s Compensation Advisory Council was created to advise the Department and Legislature on policy matters concerning the development and administration of Wisconsin’s worker’s compensation system. The Advisory Council is comprised of an equal number of voting members from labor and management, along with non-voting representatives from the insurance industry, a representative from the Department and liaisons from the medical community. In 2014, for the first time in the history of the Advisory Council, the agreed-upon bill that it submitted to the Legislature did not pass.

On July 12, 2015, Governor Walker enacted the 2015 Budget Bill which included the transfer of 18 worker’s compensation administrative law judges from the Department of Workforce Development to the Department of Administration. This was the first change to the worker’s compensation field that has occurred without the Advisory Council’s input. Since that time there have been many rumors regarding the intent of various groups to circumvent the Advisory Council and introduce bills directly to the Legislature that would significantly change the landscape of Wisconsin’s worker’s compensation system.

The Advisory Council recently met last Wednesday, October 21, 2015, and authored a draft bill that has been negotiated and agreed upon by both labor and management to be introduced in the 2015-2016 session. Per notes taken at the most recent meeting, below are some of the main items that are set to be listed in the final agreed-upon bill that is scheduled to be drafted and submitted to the Legislature later this year. As you will see, the changes proposed appear to favor employers and insurance carriers.

  • Reduce the statute of limitations for traumatic injuries from 12 years to 6 years (the SOL for occupational injuries remains unchanged)
  • Allow apportionment of permanent partial disability – require employees to disclose all previous permanent disabilities or impairments to the alleged injured body parts so that liability for employees’ conditions can be apportioned between the prior impairments and the injuries resulting from the alleged work event. Employers/carriers would then only be held liable for the portion of the condition directly caused by the work event or occupational exposure.
  • Update the permanent partial disability minimum ratings to reflect medical advancements (i.e. lower minimum ratings for joint repairs and total joint replacements)
  • Eliminate wage escalation so temporary disability benefits are paid based upon actual earnings at time of injury rather than an escalated rate
  • Eliminate 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 benefits if a worker is brought back to work on light duty and they subsequently are fired for good cause
  • Increase the maximum permanent partial disability benefits by $20 in 2016 to $342 and $20 in 2017 to $362 weekly
  • Allow prospective orders for vocational retraining
  • Fund a position at the Department of Justice to fight worker’s compensation fraud

In addition to the Advisory Council’s agreed-upon bill, Representatives Spiros (R-Marshfield) and Knodl (R-Germantown) and Senator Stroebel (R-Saukville) circulated a reform proposal last week which includes many provisions that are even more employer-friendly than those in the agreed-upon bill. Highlighted below are some of the most significant changes included in this recent bill:

  • Bar recovery of work comp benefits to an employee who knowingly falsifies their physical condition on an employment application if the employer relies upon this false information to hire the employee and there is a causal connection between the injury and the false information
  • Allow for reduction of benefits if an injury is caused by negligence attributed to the employee
  • Allow for an offset of benefits by old-age social security income, not just social security disability income
  • Reduce the statute of limitations for traumatic injuries to 2 years instead of 12 years
  • Allow for the denial of benefits during a healing period if an employee is brought back to work light duty and they are subsequently suspended or terminated for misconduct or substantial fault, as defined by unemployment insurance law
  • Eliminate the escalation of wages during a renewed period of disability and, instead, use the date of injury wage to calculate benefits owed
  • Eliminate minimum permanent partial disability ratings when it is shown that no actual impairment resulted from the procedure or injury
  • Allow prospective retraining orders
  • Require employees who the Department have found suffered permanent partial disability to resubmit to a medical re-examination every three years at which time the Department will re-evaluate the case and issue a new order as to permanent partial disability based upon the updated medical opinion
  • Require employers with health benefit plans to provide employees covered by the plan their choice of practitioner within the plan
  • Allow employers to direct care for employees not covered by an employer health benefit plan

This bill is set to be introduced to the Legislature jointly by Rep. Spiros and Sen. Stroebel on October 29, 2015, to be voted on yet this year.

At this time, it is yet to be seen whether either bill will be adopted by the Legislature in its entirety or in part. The Lindner & Marsack Worker’s Compensation Defense Team continues to follow these issues closely and will provide additional updates as they become available. Should you have any questions or want additional information regarding these bills and the effect of the potential changes on the worker’s compensation system, please contact any member of the Lindner & Marsack Worker’s Compensation Defense Practice.

NLRB EXPANDS JOINT EMPLOYER STANDARD, EXPOSING MORE EMPLOYERS TO UNIONIZATION

By: Kristofor L. Hanson and John E. Murray

The National Labor Relations Board (“Board”) has expanded its joint employer test providing easier access to unions seeking to represent staffing agency temporary workers. The Board’s decision in Browning-Ferris Industries of California, 362 NLRB No. 186 (Aug. 27, 2015), will likely have far-reaching implications for businesses who have relationships with workers provided by staffing agencies whom they did not previously consider as their own employee.

The Browning-Ferris decision arose after the Teamsters sought to represent various temporary workers at a BFI recycling facility. At this facility, BFI had 60 employees who performed work outside the facility. Most of these employees were represented by the Teamsters. Approximately 240 individuals worked inside the facility. Most of these workers were temporary employees supplied by Leadpoint, a staffing agency. The Teamsters conducted a campaign to represent these temporary workers as employees of BFI. BFI claimed these workers were not their employees.

The Underlying Facts

BFI and Leadpoint had an agreement which designated Leadpoint as the sole employer of the temporary workers it supplied to BFI. Leadpoint and BFI shared responsibility for the temporary workers in a manner which is fairly common among employers who use temps. Leadpoint was responsible for hiring and supplying qualified workers, but BFI set the qualification standards and required a pre-employment drug screen. Both BFI and Leadpoint provided some training to the temporary workers. Leadpoint had the responsibility to discipline, evaluate and discharge these workers. However, BFI could discontinue the placement of a worker, and could recommend or request discipline. Leadpoint was responsible for paying employees and setting wage rates, so long as those rates did not exceed the rate BFI paid full-time employees for similar tasks. BFI set shift schedules, staffing levels, productivity standards and controlled the pace of work. Leadpoint assigned workers to particular shifts and jobs. BFI supervisors conducted pre-shift meetings for all employees. However, Leadpoint had three on-site mangers and three leads who supervised these workers. It also had an HR manager on-site. Despite their agreement, BFI actually exercised fairly little control over the Leadpoint workers.

The Board’s Ruling

The Board determined BFI’s “right to control the work of [these] employees and their terms of employment” was more important than BFI’s actual exercise of that control. The Board stated that it does not “require that this right be exercised, or that it be exercised in any particular manner” in order for BFI to be considered a joint employer. In other words, BFI was a joint employer of these workers because of the control it could exercise over them.

The Board’s decision departed from more than 30 years of Board decisions and federal case law which had held that the actual control exercised was more significant in determining joint employer status. Now an employer who exercises “indirect control,” “reserves authority” to exercise control, or “co-determines” terms and conditions of employment may well be a joint employer under the National Labor Relations Act. 

The Impact of the Board’s Decision

This decision will likely have a far-reaching impact for any employer who engages a staffing agency for temporary workers.

Increased Organizing. Particularly where it already represents an employer’s full-time workforce, unions presumably will begin to target temporary workers for representation campaigns. It will be challenging for employers to recognize and respond to these campaigns. However, the impact of this decision probably will not be limited to efforts to organize temporary workers. It will potentially reach into other areas, such as:

Franchisor-Franchisee relationships. Franchisees and franchisors historically have not been joint employers of the franchisee’s employees. However, the NLRB’s General Counsel currently is trying to hold McDonald’s liable as a joint employer for the unfair labor practices of its franchisees. Based on the Browning-Ferris decision, the degree of control McDonald’s could directly or indirectly exercise over these workers may determine its joint employer status. The Board, or unions, also may assert pressure on franchisors in an effort to organize the employees of their franchisees.

Secondary boycotts. The new joint employer standard may expand the number of employers union workers can lawfully picket.

Multi-party bargaining. If the Teamsters represent BFI’s temporary workers, situations could arise in which BFI and Leadpoint both need to be involved in collective bargaining. In addition, many employers use temporary workers supplied by more than one staffing agency. Each staffing agency may require a seat at the bargaining table. This decision also could cause employers to limit the number of staffing agencies they use.

At the present time, the full scope of this decision is difficult to assess. There will likely be further litigation related to the Browning-Ferris decision. The ensuing litigation may lead the current Board, or a future Board, to modify its application. Lindner & Marsack will be preparing a more detailed memorandum on these and other issues as they are addressed by the Board and by federal courts. If you have any immediate concerns about how this decision could affect your business, feel free to call or email Kris Hanson, John Murray, Jon Swain, Tom Mackenzie, or any other Lindner & Marsack attorney.

NLRB STRIKES ANOTHER EMPLOYER CONFIDENTIALITY POLICY

By: Daniel Finerty

On August 27, 2015, the National Labor Relations Board (Board) invalidated an employer’s confidentiality policy that was in place to maintain the integrity of its internal investigations. The Board determined both the original and revised confidentiality policies used by the Boeing Company unlawfully restrained employee rights to discuss the terms and conditions of their work and to engage in protected concerted activities under the National Labor Relations Act. However, the Board’s decision has clarified the muddy waters surrounding the effective use of confidentiality policies during internal investigations into sexual harassment, workplace threats and other employee misconduct.

Boeing’s original policy identified its interest in protecting the confidentiality of an internal investigation. It explained that such investigations typically dealt with “sensitive information and may be conducted under authorization of the Boeing Law Department.” As a result, the policy directed employees “not to discuss this case with any Boeing employee other than company employees who are investigating this issue or your union representative, if applicable.” The Board ruled that this policy potentially restrained employee speech. The Board rejected Boeing’s justifications, that the protected witnesses, victims, or employees from retaliation, harassment and rumors.

The Board also rejected Boeing’s revised confidentiality policy. In the revised policy, Boeing recommended that employees refrain from discussing an investigation. This slight change did not cure the Board’s initial concerns. Even the revised policy reasonably tended to inhibit employees’ rights to engage in activity protected by the NLRA.

A blanket confidentiality policy is unlikely to survive Board scrutiny regardless of whether or not it carves out discussions with a union representative. The Board has reaffirmed its position that “[e]mployees have a Section 7 right to discuss employer investigations with their coworkers.” To comply with the Board’s recent decisions, while protecting employees involved in an investigation, employer’s may want to consider:

  • Eliminating blanket confidentiality policies applicable to all investigations.
  • If an employer has specific reason to believe that any of the following circumstances may exist or arise during an investigation, a basis for an employer’s concern may be justified where:
    • Witnesses need protection;
    • Evidence is in danger of being destroyed;
    • Testimony is in danger of being fabricated; or,
    • There is a need to prevent a cover up.
  • If the documented concern(s) justify a restraint on employees’ right to discuss this particular investigation, consider narrowly-tailored confidentiality rules which meet the relevant circumstances and protect the integrity of the investigation without unreasonably limiting employees’ protected rights under the NLRA.
  • Consideration should be given to whether the need for confidentiality applies to all witnesses or only a limited group. All affected employees should be given a copy of the narrowly-tailored confidentiality policy and should be asked to sign an acknowledgement of receipt.

Tailoring any confidentiality restrictions to specific concerns that arise during a particular investigation is currently the best way to withstand Board scrutiny of those restrictions.

If you have questions about confidentiality policies, please contact Daniel Finerty at 414-226-4807, or any other Lindner & Marsack attorney at 414-273-3910.

Update! – Changes to the Wisconsin Worker’s Compensation System as a Result of the 2015 Budget Bill

By: Chelsie D. Springstead

Governor Walker initially submitted a budget bill on February 3, 2015, which, among other things, proposed removing the Worker’s Compensation Division from the Department of Workforce Development (DWD) and moving administrative law judges and the judicial functions to the Department of Administration – Office of Hearings and Appeals (DOA) and the remaining staff and day-to-day functions to the Office of Commissioner of Insurance (OCI).   In late May 2015, the Joint Finance Committee revised the bill to include the reassignment of the judges and the judicial functions to the DOA but rejected the proposal to move the staff and remaining functions to the OCI, proposing instead to keep them at the DWD. Additionally, the revised bill called for the work comp judges to spend 90% of their time at DOA adjudicating work comp cases, leaving the remaining 10% of their time for them to preside over other matters handled by DOA.

On July 12, 2015, Governor Walker enacted the 2015 Budget Bill which included the transfer of eighteen worker’s compensation administrative law judges and all adjudicatory functions to the DOA. The budget also stated that no less than six judges and two support staff positions should remain at the DWD to handle the day-to-day functions. As suggested by the Joint Finance Committee, the remaining staff and day-to-day functions (including claims management and insurance regulation) will remain at the DWD. However, Governor Walker used his line item veto to strike the sentence proposed by the Committee which called for 90% of the judges’ time to be spent on work comp cases, stating as an explanation that the DOA should have control over what cases the judges in their department preside over. These changes are set to take place on January 1, 2016.

It is currently unclear whether the six judges that will remain at the DWD will be able to preside over settlement conferences or whether that function will be transferred to the DOA. It is also unclear whether the eighteen judges that are being transferred to the DOA will be the only judges to handle worker’s compensation hearings, or whether other judges that are currently at the DOA will be cross-trained to handle worker’s compensation cases as well. This could mean an influx of new judges presiding over worker’s compensation hearings.  A committee is currently forming to aid the DOA and DWD in such decisions and to help make the transfer of the judges as seamless as possible. We will continue to supply you with up-to-date information as this process progresses.

While the recent budget bill is considered to have effected position changes only with no real substantive changes made to our existing worker’s compensation system, there are other proposed legislative bills currently being circulated which call for significant changes to the Act including altering the statute of limitations, eliminating minimum permanency ratings, enacting a medical fee schedule and allowing civil action against employers for abusive work environments. While none of these proposed bills have been submitted to the Legislature for review at this juncture, we will continue to monitor all proposals and will provide ongoing updates once/if any are presented to the Legislature.

Please feel free to contact Chelsie Springstead by email at cspringstead@lindner-marsack.com, or any member of the Lindner & Marsack Worker’s Compensation Defense Practice with any questions.