Walcheske & Luzi, LLC Employment Law Firm http://www.walcheskeluzi.com Walcheske & Luzi represents clients on employment-law related issues from discrimination, harassment, retaliation, disability, and FMLA Wed, 22 Mar 2017 22:00:12 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.13 Is A Defend Trade Secrets Act Seizure Order Rarer Than a Bears Super Bowl Victory? http://www.walcheskeluzi.com/blog/trade-secrets-act/ http://www.walcheskeluzi.com/blog/trade-secrets-act/#comments Wed, 22 Mar 2017 22:00:12 +0000 http://www.walcheskeluzi.com/?p=4070 Last year on May 11, 2016, the federal government waded into the trade secret pool and passed the Defend Trade Secrets Act. One of the unique features of the federal law that made it distinct from state laws and drew significant interest was the civil seizure order provision. That is, the DTSA allowed a plaintiff (usually a business alleging misappropriation of a trade secret) to ask a federal court for an order to seize property to stop the spread or use of a trade secret. However, a party asking for such an order has to demonstrate “extraordinary circumstances” that make the order necessary.

Now that it has been nearly a year since the DTSA become law, a seizure order under the DTSA is proving to be extraordinarily difficult to obtain. Take, for example, the recent decision in OOO Brunswick Rail Management v. Sultanov, 17CV0017 (N.D. Cali. Jan. 6, 2017). There, the plaintiff brought a trade secret lawsuit against former employees. The company alleged that the defendants were engaged in suspicious activity such as sending, deleting, and emptying the trash on a series of e-mail communications and communicating with parties that one defendant was explicitly prohibited from contacting. One defendant even refused to return a company-issued mobile phone and laptop.

Despite even the failure to return company property, the court did not grant the plaintiffs’ request for a seizure order under the DTSA. The issue stopping the court was the fact that the DTSA does not allow a seizure order where an injunction or restraining order under Federal Rule of Civil Procedure 65 is adequate. Here, the court’s order included requiring the defendant to turn over the devices at issue to the court at a future hearing date and prohibiting them from being accessed or modified in the meantime. (Note: the court later dissolved its temporary restraining order.)

Thus, it would seem from the OOO Brunswick Rail Management decision that the court was willing to rely on its command that a plaintiff preserve evidence to satisfy the concerns of the plaintiff seeking the seizure order. Most parties in the Seventh Circuit may encounter a similar response without an ability to demonstrate a unique concern. The Seventh Circuit Electronic Discovery Pilot Program generally promotes the use of “preservation orders” by courts in the principles listed in its proposed standing order.

Further, to the extent courts are granting requests to seize electronic devices, they are still relying on FRCP Rule 65 rather than the DTSA. For example, the Northern District of Indiana court in Magnesita Refractories Co. v. Mishra, upheld its own decision, on what essentially was a request to reconsider, to seize the laptop of an employee allegedly misappropriating trade secrets from his current employer. In an order of January 25, 2017, the court reasoned that its seizure order was appropriate under Rule 65 and rejected that the heightened requirements of the DTSA applied. For support, the court cited other decisions following passage of the DTSA in Earthbound Corporation v. MiTek USA, Inc. (W.D. Wash. Aug. 19, 2016) and Panera, LLC v. Nettles (E.D. Mo. Aug. 3, 2016).

So what is answer to this blog post title? Yes, a DTSA trade secret order appears to be rarer than the Chicago Bears lone Super Bowl title. When asked to seize electronic devices to preserve evidence related to allegations of trade secret misappropriation, courts prefer to rely on FRCP Rule 65 rather than the DTSA. While the DTSA provided a new way to secure property containing trade secret information, one year after its passage courts have been reluctant to rely on it to seize property. To obtain such an order under the DTSA, a party may need to be prepared to demonstrate that preservation is not enough and that permanent or long-term seizure is needed to make sure the trade secret stays protected and undisclosed. Thus far, no court appears to have been presented with facts to convince it a DTSA seizure order is appropriate.

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Be Careful Before Taking a CIA Approach to Investigate FMLA Abuse http://www.walcheskeluzi.com/blog/fmla/ http://www.walcheskeluzi.com/blog/fmla/#comments Wed, 08 Mar 2017 17:47:13 +0000 http://www.walcheskeluzi.com/?p=4067 WikiLeaks made rather shocking news yesterday with the publication of documents purportedly showing that the CIA possessed the tools to turn common household and personal goods into surveillance vehicles. For example, one tool could make certain smart televisions appear to be off but actually be recording and sending the surrounding conversations to the CIA.

This relates to a common question employers ask related to surveillance: what can I do to investigate an employee who claims to need Family and Medical Leave Act leave but I have reason to believe they’re really just skipping out on work? While the answer to this question could go in any number of directions, a good starting point to understand common compliance issues is the case of Turner v. Parker-Hannifin Corporation, (W.D. Mich. April 12, 2012).

In Turner, the plaintiff performed manual labor for the employer. Prior to his litigation against the employer, the plaintiff was most recently granted continuous FMLA leave related to a back strain, but in years past he also used intermittent FMLA for his diabetes. After a period of continuous FMLA leave following a hunting trip and a history of using intermittent leave near weekends and holidays, the employer began to suspect abuse. The company decided to hire a private investigator to conduct an investigation into what the plaintiff did while on FMLA leave.

The investigator’s report to the company showed that the plaintiff was hunting during the time he was on FMLA leave. Acting on this report, the employer terminated the plaintiff’s employment for his dishonesty and his violation of its code of conduct. Of course, the plaintiff subsequently filed a lawsuit with claims of FMLA interference and retaliation.

When I talk about this case with audiences (quick plug – sign up for our upcoming seminars here and here!), it never fails to surprise them to learn that the judge denied the company’s motion for summary judgment in this case. The court essentially had two major issues with the employer’s course of conduct here.

First, the information the company received from the investigation report did not indicate whether the employee’s “activities were inconsistent with the restrictions placed on him by his doctors.” All the report revealed was that the plaintiff walked into the woods with a gun. It did not comment on whether he was doing things related to his need for FMLA leave and his job like heavy lifting, bending, or twisting. Without having more information, the court determined a jury should decide whether the company was correct to determine that the plaintiff having gone hunting demonstrated his ability to work.

Second, the court determined there was evidence to support the conclusion that the company was targeting the plaintiff because of his FMLA leave. The plaintiff demonstrated that the employer did not typically use surveillance on employees who took FMLA leave. The plaintiff also presented several e-mails showing the plaintiff’s superiors were frustrated by the number of FMLA leave days he took. These e-mails led the court to decide that a jury could conclude the plaintiff’s prior FMLA use influenced the company’s decision to terminate his employment.

There are two important lessons from Turner for employers considering using surveillance methods to root out FMLA abuse. While employers can rely on investigations to find out whether employees are being honest (and can make decisions to discipline or end employment based on dishonesty), employers need to make sure they have good information that is relevant to the certification for FMLA leave before taking an adverse action. In other words, can you answer whether what the employee is doing on FMLA leave is allowed by the restrictions that are leading to the need for FMLA leave?

Additionally, Turner emphasizes the need for a consistent approach when responding to suspected FMLA abuse. If an employer is undertaking a unique response to an employee’s use of FMLA leave, it can raise some eyebrows. Employers may need to consider asking some self-critical questions about how and why it is responding before acting to avoid claims of interference or retaliation.

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Responding to “Leaks” in the Workplace http://www.walcheskeluzi.com/blog/leaks/ http://www.walcheskeluzi.com/blog/leaks/#comments Mon, 27 Feb 2017 17:12:05 +0000 http://www.walcheskeluzi.com/?p=4064 Last week, President Trump made news when he decried “leaks” of information to news media that allegedly occurred within other federal intelligence agencies. Now, while not many employers have to worry about leaks within their business related to matters of national security, most (if not all) companies have information that they would rather not get out into the open.

Such public displays of private information can run a gamut of potential consequences. For some information, it may place the company in a negative light. For other information, it may have grave consequences on the viability of the business. This begs the question, what are some of the more common issues and how should employers respond?

Trade Secrets and Confidential Information

We’ll start with disclosures that are most likely to have the most critical impact on any employer. I refer to confidential information here as the stuff companies want to keep private, but it does not rise to the level of trade secret. It is not protected by law but an employer can help protect it by entering into private agreements with employees. Trade secrets, on the other hand, are information that has real or potential economic value because it is not generally known to the public and is the subject of reasonable efforts to maintain its secrecy. Qualifying trade secrets are protected from misappropriation by state and federal law.

Employers can discipline employees for violating policies and agreements concerning confidential and trade secret information. In the case of trade secrets, a “leak” should be met with appropriate discipline to ensure protection of the trade secret. Without any response, the company may risk statutory trade secret protections. Legal cases based on trade secret claims often hinge on whether the company undertook reasonable efforts to maintain secrecy. Failing to discipline an employee who discloses trade secret information may leave the company open to arguments that it did not practice these necessary efforts. Additionally, the business may risk losing the argument that the information is not generally known to the public. Thus, “leaks” in this regard may compel an employer to provide a significant response.

False Claims Act and SOX

Any employer doing business with the federal government should become familiar with the False Claims Act. Claims under this law, otherwise known as qui tam lawsuits, are essentially a complaint brought by (usually) an employee alleging the defendant is defrauding the government. Here, a “leak” would take the form of a federal court complaint as the plaintiff only stands to recover if the information is not publicly known prior to the lawsuit.

Similarly, employers with businesses regulated the Securities and Exchange Commission should become familiar with the Sarbanes-Oxley Act of 2002 (SOX). Relevant “leaks” under SOX can take the form of reports to a regulatory or law enforcement agency, members or committees of Congress, or an investigating supervisor.

Unlike dealing with disclosures of confidential or trade secret information, employers who are addressing a complaint under the False Claims Act or SOX should proceed cautiously. This is because these laws include protections from retaliation, which can take the form of termination, demotion, suspension, harassment, or many other actions. For example, if a False Claims Act plaintiff is found to have been terminated for reporting the fraud, the employer may be ordered to reinstate the employee and pay double the employee’s lost wages as damages.

Retaliation for Opposition and Other Laws

Like the False Claims Act, a host of workplace-related laws prohibit retaliation against employees who engage in what is deemed “protected” conduct. Laws like Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act and the Genetic Information Non-Discrimination Act include protections for employees via their respective “opposition” and “participation” clauses. The opposition clause prohibits discrimination because an individual opposed any practice made unlawful by the respective law. The participation clause prohibits discrimination because the individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the respective law.

Relevant to this discussion, a “leak” may take the form of an employee engaging in “opposition” to allegedly unlawful conduct. The EEOC, in its recently released enforcement guidance on retaliation, highlights that raising complaints to individuals outside the employer or publicly raising complaints, such as engaging in picketing to oppose a violation of law, has been found to be protected activity. Discipline, termination, or other adverse actions taken in response to such protected “opposition” activity are likely to lead to a charge of discrimination. Employers need to proceed cautiously where these circumstances are present so as to not run afoul of these laws.

Social Media

This may be the most common form of “leaks” for employers to address. There are many stories of employees taking to social media to discuss work. Sometimes, this can result in employees discussing confidential or trade secret information about work. More often the case is that employees are discussing what is happening at work that an employer may prefer to stay out of the public view.

Before responding to a social media leak, employers should consider whether the post, tweet, or update concerns the terms or conditions of employment. That is, if an employee is discussing such topics as how much they are paid, how they are treated by a supervisor, the hours they work, or other related matters, the social media post may be protected by the National Labor Relations Act as Section 7 activity.

For example, in the case of Triple Play Sports Bar and Grille v. NLRB, employees engaged each other in a social media post concerning the employer’s tax withholdings on employee paychecks. The Second Circuit Court of Appeals agreed with the NLRB’s conclusion that the post and subsequent employee “likes” were protected, concerted activity under the NLRA, and discharging the employees for this social media activity was deemed unlawful. Here again, social media is another area where care must be taken before responding to employee leaks on social media.

Employee “leaks” of private information are not exclusive to the federal government. They can cause trouble for any workplace and may even have critical effects on information that enjoys strong legal protections. How and when an employer should respond is different in each scenario, but any leak should be carefully examined to stay in compliance with state and federal employment laws.

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Three Questions to Ask Before Responding to Controversial Employee Tweets http://www.walcheskeluzi.com/blog/tweets/ http://www.walcheskeluzi.com/blog/tweets/#comments Fri, 17 Feb 2017 00:42:38 +0000 http://www.walcheskeluzi.com/?p=4039 Anybody with a Facebook, Twitter, or other social media account has likely witnessed a flurry of political-related activity from friends and family over the past month. Usually this is a topic that comes up during election season, but this year is proving different. Down to the minute, many social media members are expressing opinion after opinion through posts and tweets about the latest developments from President Trump’s administration.

Inevitably, many employers have some of the more provocative social media activity of employees brought to their attention. In some cases, employers may be asked or feel compelled to respond through an adverse action. Even Saturday Night Live isn’t immune in this respect, as it recently suspended a writer over a Trump-related tweet.

Before any employer reacts to an employee’s social media post with discipline or discharge, there are a few basic questions to consider. Of course, every situation is unique, but these “starter” questions highlight some of the main concerns that every employer should consider before reacting to employee social media.

  1. Is the post about the employee’s work?

Employees often take to social media to comment on how they are treated on the job, how much they are paid, and a host of other work-related topics. If a social media post concerns something related to work, the employee could be protected under the National Labor Relations Act or NLRA.

The NLRA, which is the federal law that applies to unions in private workplaces, contains certain protections for employees regardless of whether there is a union in the workplace. Lawyers often refer to these protections as Section 7 rights. They give employees the right to engage in protected, concerted activity. In other words, when employees are participating in a social media conversation or one employee is trying to get others to participate in a social media conversation regarding work, the employees could be engaging in activity that is protected by federal law.

The National Labor Relations Board, which administers the NLRA, has maintained a high interest in cases involving social media and protected, concerted activity. Any employer should find out whether its response may implicate the NLRA before taking an adverse action in response to a social media post.

  1. Is the post about the employee?

Federal law protects individuals from an adverse employment action on the basis of age, disability, genetic information, harassment, national origin, pregnancy, race, religion and sex. These categories are otherwise known as protected classes. The same federal laws also include protections from unlawful retaliation. Generally speaking, unlawful retaliation occurs when an employee suffers an adverse action at work because the individual opposed unlawful discrimination in the workplace or participated in a procedure related to prosecuting a discrimination claim. State and local laws can add significantly to the number of protected classes in your local jurisdiction.

Much of the recent high-profile political activity has concerned issues potentially related to protected class status. For example, President Trump’s executive order on immigration incited a flurry of social media protests. An employer responding to an employee’s post identifying his or her national origin as a basis for opposing political action could land the employer in hot water. Likewise, when an employee relates a political topic to his or her opposition to alleged discriminatory activity, it could also be problematic for the employer. None of this is to say that unlawful discrimination has actually happened, but it may invite the interests of federal and state agencies that investigate employment discrimination claims. In other words, political posts that bring the issue back home to the person or workplace should be treated with care.

  1. How was the post obtained?

A social media post can be so controversial that an employer may not consider how it came to the attention of the company. Two laws are important in this regard.

First, in Wisconsin, like many other states, a recently passed law prevents employers from requiring an employee to disclose his or her user name and password information to a social media account. The law also prohibits an employer from requiring the employee to pull up his or her social media account so it can be reviewed by the employer. This law, known as the Wisconsin Social Media Protection Act, essentially limits how employers can obtain information from personal social media accounts.

Second, a federal law, known as the Stored Communications Act, arguably requires an employer to obtain authorization from an individual before accessing a social media account. The difficult situation where this can most foreseeably arise is where employees save their user name and login information to an electronic device, such as a computer or laptop, which the employer can access. That is, just because someone only has to click “login” or “enter” to gain access to a social media profile, does not mean that they have the authority to access that account.

What is the solution? Relying on information that other employees, who are connected on social media to the employee in question, voluntarily bring forward to the employer’s attention will not run afoul of these laws. For the Stored Communications Act, this has been referred to by courts as “the authorized user exception.”

While these three questions won’t give you all the answers, they are a good start.

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Recent Political Events a Strong Reminder for Employment Law Training http://www.walcheskeluzi.com/blog/recent-political-events-a-strong-reminder-for-employment-law-training/ http://www.walcheskeluzi.com/blog/recent-political-events-a-strong-reminder-for-employment-law-training/#comments Thu, 09 Feb 2017 20:53:58 +0000 http://www.walcheskeluzi.com/?p=4027 Of course, you’d have to live in the deepest of caves to not be aware of recent, major political stories concerning President Trump’s executive orders and other actions. More specifically, just days into his administration, President Trump’s executive order regarding immigration stirred protests across the country. Still, the most recent polling data shows that Americans are fairly equally divided on approval of President Trump’s biggest headline-making action. A poll released Wednesday, February 8, 2017, showed that 55% of voters either approve or strongly approve of President Trump’s controversial immigration executive order.

Polls such as these demonstrate that the chances are pretty good your workforce is just as divided over these issues. Moreover, at least a part of your workforce likely consists of one or more individuals who were born in another country. In 2015, around 16.7% of the U.S. labor force consisted of foreign-born persons according to the Bureau of Labor Statistics. Numbers such as these go to show that there are likely people who are directly or indirectly affected by these issues and certainly people who are passionate on both sides.

Ok, get to the point. What I mean to communicate with this post is that now more than ever employers need to be mindful of supervisor and other employee training on discrimination and harassment on the basis of protected classes established by federal, state, and local laws. More specific to recent headlines, national origin discrimination is prohibited by Title VII of the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act. These protections for individuals include barring a hostile work environment against individuals based on their national origin. In politically divisive times such as these where individuals can get carried away and may escalate political topics into offensive conduct, it is important to be proactive and take steps to maintain a respectful workplace.

The U.S. Supreme Court has recognized that employers cannot always control everything that happens in their workforce. That is why discrimination and harassment training is critical to what is known as the FarragherEllerth defense. In each of these cases, the Supreme Court laid out two elements to avoid liability in the face of hostile work environment claims:

The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Two critical components of this defense are employer policies and training. First, employers should clearly identify for employees that the employer does not tolerate unlawful discrimination and harassment. Any policy should also provide a reporting and investigation procedure for individuals to go to when they feel something in violation of the policy has occurred. Two, don’t just sit on your policy. Annual supervisor training should be conducted at minimum. Supervisors are where the rubber meets the road for any workplace. These individuals should have some guidance to identify what is unlawful and needs to be reported. A better practice is to remind all employees of the policy and reporting procedure on a regular basis. This training can be conducted by knowledgeable human resources staff, if available, or your favorite attorney who is knowledgeable about these issues and relevant laws.

While every circumstance that is the subject of litigation is unique, proactive employers that aim to avoid employment law claims should make employee discrimination and harassment training a standard practice. This serves as a reminder to employees that while we all hold different opinions on political topics, it is not acceptable to create an offensive work environment on protected classes such as where a person came from.

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Starting 2017 Off Right With A Compliance Bonanza! http://www.walcheskeluzi.com/blog/compliance/ http://www.walcheskeluzi.com/blog/compliance/#comments Tue, 31 Jan 2017 19:37:34 +0000 http://www.walcheskeluzi.com/?p=4001 The beginning of the year is a crazy time and compliance issues like policy review and employee handbook edits are usually first to take a back seat. But, the start of a new year is actually the best time to kick your compliance-slacking in the rear and get your company set for the year ahead. So block some time on your calendar, grab your handbook and policies and the largest coffee you can get your hands on, and let’s get on with the BONANZA!!!

The latter half of 2016 was chock-full of guidance from our favorite government agencies. Here’s a rundown of releases to make sure you’re up-to-date with those who will not-so-kindly let you know if you aren’t:

  • The Department of Labor:
    • Issued its Final Rule requiring federal contractors to provide paid sick leave to employees who work on or in connection with certain federal contracts
    • Created a new resource to help prevent misclassification issues (aka, and most frequently, misclassifying an employee as an independent contractor). This issue comes up a lot, so definitely worth checking out, particularly if you’re a small business who hasn’t hired many individuals or a new business looking at hiring its first employees.
  • The Occupational Safety & Health Administration:
    • Issued new policy guidelines on provisions in settlement agreements that restrict whistleblowing. In a nutshell, it states “OSHA will not approve a ‘gag’ provision that prohibits, restricts, or otherwise discourages a complainant from participating in protected activity,” defining “protected activity” to include “filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government.” Super.

BONUS!!!

Don’t forget that as of January 22, 2017 (aka, last week Sunday) you should have started using the IRS’s new I-9 Employment Verification form.

Also, if your company employs 100+ employees or is a federal contractor or first tier subcontractor with 50+ employees and a contract/subcontract of $50,000+, don’t forget that starting March 2018 (yes, 2018, not 2017), you’ll be required to file a revised EEO-1 survey, now including pay data (which will be kept confidential). Here’s the EEOC’s press release on the change, as well as its Q&As about the change.

 

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The FMLA Problem When an Accommodation is Gone in the Wink of an Eye http://www.walcheskeluzi.com/blog/the-fmla-wink-of-an-eye/ http://www.walcheskeluzi.com/blog/the-fmla-wink-of-an-eye/#comments Tue, 24 Jan 2017 18:25:17 +0000 http://www.walcheskeluzi.com/?p=3998 Typically, we write about telecommuting or work-from-home arrangements as a potential reasonable accommodation under the Americans with Disabilities Act. But the Seventh Circuit recently demonstrated why employers need to be careful with such arrangements even in the Family and Medical Leave Act (FMLA) context in Wink v. Miller Compressing Company.

In Wink, the employee had an autistic son for whom she was certified for FMLA intermittent leave to attend medical appointments and therapy. After the employee’s son was expelled from his day care, the company and employee agreed to an arrangement where she could work from home and report any time needed to care for the son as FMLA leave.

Several months after this arrangement was put into practice, the company decided that no employees would be allowed to work from home. At the same time that the company required the employee at issue to return to the office full-time the following week, a human resources representative falsely told the employee that the FMLA law covers leave for doctors’ appointments and therapy only. Because the employee could not find care for her autistic child, she remained home and was terminated by the employer.

As for the FMLA, the employee brought claims that the employer interfered with her right to leave and retaliated against her for exercising those rights. The Seventh Circuit upheld the jury’s verdict for the employee on the retaliation claim, reasoning:

As she was a valued and experienced employee who had worked for the company at home two days a week since February without the company’s complaining, the company had no compelling reason to fire her. Maybe, because of its financial troubles, it would have had to lower her wage, on the plausible supposition that an employee is likely to do less work for her employer at home than in the office – in Wink’s case if only because her child might take more than the allotted time (two hours a day) to be cared for by her. But that is not argued here.

In sum, the lack of compelling reason to change the agreed arrangement and the false line regarding FMLA leave rights doomed the employer.

(Note for audience members who are litigators, this case is also a worthwhile read as it relates to the award of attorney’s fees.)

What is the lesson from this case? Anytime an individual is exercising a right that is protected by law, careful attention needs to be given when making any changes to the terms and conditions of employment. An employer should be able to identify a legitimate, nondiscriminatory reason for its decision. Any change in terms and conditions that cannot be supported with a good reason is potentially open to a claim for retaliation related to the protected activity. In this case, the employer’s failure to present a compelling reason allowed for an inference of retaliation. The misinformation the human resources representative provided regarding FMLA leave rights was likely the final chip that helped the jury to conclude there was an unlawful motivation at issue.

 

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Follow the French? E-mails and Overtime http://www.walcheskeluzi.com/blog/follow-the-french-labor-law/ http://www.walcheskeluzi.com/blog/follow-the-french-labor-law/#comments Mon, 02 Jan 2017 22:03:28 +0000 http://www.walcheskeluzi.com/?p=3931 A new French labor law went into effect with the new year, requiring employers and employees to negotiate over periods of after-hours time when employees do not have to respond to work e-mails. The law is now a requirement for employers with 50 or more employees. If the two sides are unable to agree on hours, then the employer must publish a charter that explains when employees are not required to respond. Reports explain that the motivation behind the law is to curb employee burnout.

While there is no similar requirement on the horizon in the United States (and this is not an argument for any law), should American employers consider such policies without the force of law? While anyone can debate whether the same or similar policies are a good match for any company’s respective culture to address burnout, there is a legal incentive driving state-side employers to adopt similar workplace policies: overtime.

An employer policy that excuses employees from responding to work e-mails during certain defined hours can help limit overtime costs for non-exempt employees. It’s worth reminding readers that individuals paid on a salary basis are not automatically exempt from state or federal overtime requirements once those individuals exceed 40 hours in a workweek. Salary employees must do certain things to meet the “job duties” factor of determining exemption. If salary, non-exempt (or hourly) employees are reviewing and responding to e-mails after hours, that is time for which the employer very likely should compensate the employee. And while the Fair Labor Standards Act includes a de minimis defense that arguably excuses compensation for very small periods of time, the Supreme Court has recently thrown water on that defense leaving employers to take a significant risk by relying on it.

While the new French law is unlikely to see any traction in the United States anytime soon, creative employers should always be on the lookout for ways to ensure compliance. While managers may routinely e-mail lower-ranking employees when an important thought comes to mind, that course of action may not always demand an after-hours response that increasing the recipient’s compensable time. If your business includes many individuals who are non-exempt from overtime and who have devices they take home to access work after hours, a policy similar to the French law may be a worthwhile consideration to make sure your company is not unexpectedly incurring overtime costs from employees.

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Top 5 Labor and Employment Law Developments of 2016 http://www.walcheskeluzi.com/blog/top-5-labor-and-employment-law-developments-of-2016/ http://www.walcheskeluzi.com/blog/top-5-labor-and-employment-law-developments-of-2016/#comments Wed, 21 Dec 2016 02:50:05 +0000 http://www.walcheskeluzi.com/?p=3927 At the end of the calendar year, it is worth pausing a moment to reflect on how far we’ve come over the last 365 days in the world of labor and employment law. As Ferris Bueller so famously quipped, “Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.” This couldn’t be more true for your compliance efforts in 2016. With that in mind, the following are my top 5 labor and employment law developments in 2016.

  1. The Board Relents on Social Media

Many employers are now aware that the NLRB has exercised a strong interest in social media policies in the workplace and adverse employment decisions based on social media activity. The most significant decision addressing these issues this year came from the Board’s Chipotle Services, LLC decision on August 18, 2016. While employers have long been frustrated with the Board’s take on social media policies, the Chipotle Services, LLC decision provides an example of the Board, affirming the Administrative Law Judge, approving some common policies, including those addressing harassing or discriminatory statements. The Board also reversed the ALJ’s decision and found that Chipotle had not unlawfully asked an employee to remove a series of Tweets that constituted “protected” activity but not “concerted” activity.

  1. Defend Trade Secrets Act

Federal law finally found its way to trade secret protection in 2016 with the passage of the Defend Trade Secrets Act. Although most everyone was already subject to uniform trade secret restrictions through state-based laws, the DTSA provides additional protections. As we discussed early this year here, the DTSA sets some unique provisions that are worth studying (exemplary damages anyone?) if trade secrets are an issue in your workplace.

  1. Wisconsin Sees Another Significant Restrictive Covenant Case

I often tell anyone willing to listen audiences that almost like clockwork there is a new decision in the world of restrictive covenants (i.e. non-compete and non-solicitation agreements) that should cause everyone to audit these contracts in their workplace. This year was no different as the Wisconsin Court of Appeals gave us its opinion in Manitowoc Company, Inc. v. Lanning. The Lanning decision cautions employers to examine their non-solicitation agreements to ensure that the restrictions are properly limited to competitive solicitation. If your restrictive covenant agreement hasn’t been reviewed recently, you of course may want to include talking to a lawyer as part of your New Year’s resolution.

  1. LGBT Status Recognized as a Protected Class Under Federal Law

Although Wisconsin recognizes sexual orientation as a protected class under the Wisconsin Fair Employment Act, federal courts raised the profile of similar protections under Title VII of the Civil Rights Act of 1964 with two cases in 2016. Although a final decision has yet to be released, the Seventh Circuit strongly signaled at the November 30, 2016 oral argument that it is ready to recognize LGBT status as a protected class status under Title VII in the case of Hivley v. Ivy Tech Community College. A federal district court judge in Pennsylvania came to this conclusion in the November 4, 2016 decision in EEOC v. Scott Medical Health Center, P.C. What does this mean for Wisconsin employers? Increased damages for a successful plaintiff are likely going to be here soon as Title VII allows individuals to recover compensatory and punitive damages, which are not available under the Wisconsin Fair Employment Act.

  1. Federal Texas Judge Halts New DOL Overtime Regulations

Undoubtedly, the biggest news story in 2016 for employment law practitioners has been the most recent one. For much of the year, employers were preparing for the salary threshold to substantially increase on December 1, 2016, making many formerly exempt employees non-exempt. Currently, the 5th Circuit has granted an expedited appeal. Moreover, the AFL-CIO has moved to join the case to help assure that the lawsuit will not going away with the change in POTUS on January 20, 2017. Although still unresolved, this has been the biggest development in 2016.

Happy holidays and best wishes in 2017 to all of our blog readers!

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Employers can avoid holiday party liabilities http://www.walcheskeluzi.com/blog/employers-can-avoid-holiday-party-liabilities/ http://www.walcheskeluzi.com/blog/employers-can-avoid-holiday-party-liabilities/#comments Thu, 08 Dec 2016 22:43:58 +0000 http://www.walcheskeluzi.com/?p=3922 Author’s Note: The below holiday party themed content originally appeared on the BizTimes Milwaukee, Biz Blog. A link to the original publication is available here.

Twas the employer’s holiday party, getting all away from the house
Employees were stirring, excited to be out
The company took many precautions with care
To avoid claims of liability after the celebratory affair

Tables were lined with food and employees were well fed
So none of the eggnog would go too far to their head
Exempt managers were assigned to put on the cap
Of anyone who took too many trips to the tap

Social media coordinators and other employees who took plenty a picture
Were reminded to be careful before posting to Facebook or Twitter
But the employer and its counsel made sure to vet any policy
To avoid the wrath of the NLRB

In the days before the big holiday event
Employees were reminded of policies against sexual harassment
But these precautions were not limited to protections of gender
They included every protected class status to stop any offender

Those who attended were asked to bring another
So anything done would be approved by their grandmother
Other accommodations were made to prevent anyone’s offense
Whether thinking of age or religion, make sure to use commonsense

ADA, ADEA, PDA, and Title VII
Think of them all to prevent harassment and discrimination
Any proving complex, give your counsel a call
Because even at the holiday party, employees may be protected by all

Don’t even dismiss the FMLA
Or assume employees on leave must stay away
If someone shows up though they have a serious health condition
Attendance may still fit well within any restriction

To help avoid any claims for premium rate overtime
Be careful with those to whom tasks are assigned
Hand out any work to those who are FLSA exempt
And allow the rest to enjoy the night like they were meant

Give any bonuses or awards during the workday with care
So no business is held at the party while everyone is there
Of course, make sure attendance is an option
And hold the party away from the place of business operation

Try as you might, sometimes you may not stop all harm
Any injury while working may not be cause for great alarm
For if employees are injured for any reason
You may be covered under worker’s compensation

An ounce of prevention may be worth a pound of cure
And all the laws and regulations can seem like a blur
Consult a lawyer to stave off any liability fright
So that all will applaud the big party night

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