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 Fri, 17 Feb 2017 21:24:08 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.12 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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Texas Court Stops New Overtime Regulations http://www.walcheskeluzi.com/blog/texas-court-stops-new-overtime-regulations/ http://www.walcheskeluzi.com/blog/texas-court-stops-new-overtime-regulations/#comments Wed, 23 Nov 2016 18:05:07 +0000 http://www.walcheskeluzi.com/?p=3917 On November 22, 2016, Judge Amos L. Mazzant of the Eastern District of Texas issued a nationwide, preliminary injunction halting the Department of Labor overtime regulations scheduled to go into effect on December 1, 2016. Followers of our blog will recall reading about these regulations here and here. Most notably, Judge Mazzant’s decision means that, for now, the salary level threshold will not increase to $47,892 annually (or $921 per week) and the prior level of $23,660 annually (or $455 per week) will remain intact.

In general summary, Judge Mazzant ruled that, at this stage, it appears to him that DOL went farther than its authority under the Fair Labor Standards Act allowed in raising the salary threshold to $47,892 annually. In his memorandum opinion, Judge Mazzant explained, “With the Final Rule, the Department exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test.”

While employers across the country are hailing the decision, they are not out of the woods yet in dealing with this issue. Many of our readers have been planning for the new regulations to go into effect December 1, 2016. This has meant not only making decisions on whether to limit employee hours to increase employee compensation, but these plans probably have been communicated to employees by now. How you react in your workplace largely requires decisions based on business and employee morale concerns, as opposed to raising legal issues. Employers may decide to keep their planned changes in place or you may revert back to the status quo. However, after December 1, 2016, employees who currently qualify for exemption from overtime under the salary standard of $23,660 will continue to do so without any change to compensation.

Additionally, employers should continue to pay attention to this issue. Judge Mazzant’s order was a preliminary injunction. This means that based on the evidence and arguments presented thus far, he believes that the parties opposing the new DOL regulations are likely to ultimately prevail. However, his opinion could change in a final decision or DOL could seek an expedited appeal. Either way, it is unlikely, though not impossible, that the overtime regulations could still go into effect at a later date.

There is also the matter of the recent presidential election. In case you haven’t heard, Donald Trump was elected the 45th President of the United States. While most pundits anticipate his will be a business-friendly administration, his campaign was light on any details of how he viewed these new regulations. The most that we learned during the campaign appeared to be that he did not oppose the regulations outright but would seek to exempt small businesses or introduce the increases gradually. Whether he seeks to reintroduce them in another form or continue the litigation to defend them remains to be seen.

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EEOC Reveals Its Hand with Release of Updated Strategic Plan http://www.walcheskeluzi.com/blog/eeoc-reveals-its-hand/ http://www.walcheskeluzi.com/blog/eeoc-reveals-its-hand/#comments Thu, 10 Nov 2016 19:13:33 +0000 http://www.walcheskeluzi.com/?p=3914 Back in 2012, the Equal Employment Opportunity Commission provided guidance to the public on what especially draws its attention through the release of the 2012-2016 Strategic Plan. Last month, the EEOC again published its intentions for the next four years with the release of its Strategic Enforcement Plan for Fiscal Years 2017-2021.

The 2017-2021 SEP Executive Summary is a worthwhile read for anyone addressing employment law in the workplace. Of primary interest here are the priorities the EEOC identified that it will seek to address over the next four years. These priorities should serve as a big alarm to employers when evaluating their own workforce practices. If the EEOC receives a complaint involving these priorities, it is likely going to draw the agency’s full attention. While any company would be well-served to pay close attention to all of the priority issues, two stick out as especially pertinent in the coming years.

First, the EEOC’s priority on Eliminating Barriers in Recruitment and Hiring directly addresses a couple of growing trends in hiring practices for employers. One trend is that employers are increasingly relying on “big data” to select candidates. These techniques rely on examining objective data seen in successful employees to control an employer’s hiring practice as opposed to, for example, personal impressions observed in the interview process. A great person to follow for more information on big data recruiting is Kate Bischoff. The EEOC is likely going to focus their efforts in this regard to evaluate whether these hiring processes are excluding certain protected-classes of individuals.

Another significant trend related to the EEOC’s recruiting and hiring priority is the technology driven ways in which employers are recruiting for positions. In other words, is an employer’s recruiting and hiring practices excluding certain protected classes from employment without any specific intent to do so. An example of a case that could be raised with greater frequency comes from the EEOC’s 2014 public meeting on social media. There, the EEOC highlighted a claim raised by a 61-year-old applicant who alleged that a federal employer’s use of social media to recruit candidates put older workers at a disadvantage. Similar claims may be raised against private sector employers that do not use diverse methods to attract new talent.

Second, the EEOC’s priority on developing issues, including LGBT discrimination, is one to closely watch in the coming months and years. I highlight this issue because, recently, the Seventh Circuit (the federal court of appeals that covers Wisconsin) took up the case of LGBT discrimination under Title VII for en banc review. Taking on a case in this fashion suggests it may reconsider a three-judge panel decision finding that sexual orientation discrimination is not a claim under Title VII. As recently as last week, a Western District of Pennsylvania court found just the opposite, giving the EEOC its first taste of victory in this arena. In any event this is proving to be a hot topic that employers may be best cautioned to simply avoid by treating it as though Title VII includes the protection.

I would be ignoring the elephant in the room if I did not suggest that Donald Trump’s success in the presidential election may ultimately impact the EEOC’s priorities. In the coming months, President-elect Trump will likely set his own agenda and issue directives to the agency. We do not have a clear picture from the campaign what his priorities may be, but they are almost certain to contrast in some respect to those of President Obama’s administration.

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President Obama Continues to Press For Non-Compete Reform http://www.walcheskeluzi.com/blog/president-obama-continues-to-press-for-non-compete-reform/ http://www.walcheskeluzi.com/blog/president-obama-continues-to-press-for-non-compete-reform/#comments Tue, 01 Nov 2016 14:12:08 +0000 http://www.walcheskeluzi.com/?p=3911 One of the major issues pushed by President Obama has he completes his final year in office is proving to be non-compete reform. Earlier this year, the White House published a report that was generally critical of the growing use of non-compete agreements in the American workforce. This week, the White House continued its efforts to reduce the prevalence of non-compete agreements with a “call to action” for state changes. Along with the call to action, the White House also released a state-by-state summary guide of non-compete laws in the states.

The primary cause for concern identified by the President’s call to action is its claim that widespread use of non-compete agreements limits wage growth and creation of new businesses. While the President’s call to action identifies the “primary rationale of non-competes is to prevent workers from transferring trade secrets to rival companies,” this isn’t necessarily accurate. Most states, including Wisconsin, have trade secret laws that prohibit misappropriation of qualifying information. In this author’s experience, the main reason employers seek non-compete protections is to protect relationships employees may have with customers or clients and/or protect knowledge of internal business information that is important but may not rise to the level of trade secrets.

The President’s call to action asks states to enact legislation that accomplishes three main objectives. First, ban non-compete agreements altogether for certain workers, such as lower wage earners, certain classes of occupations, and individuals terminated without cause. Second, place new requirements on an employer’s ability to agree to non-compete terms with an employee. The President’s suggestions include requiring non-compete terms to be presented before a job offer and providing more benefits to the employee than just employment in itself. Third, promote a court’s ability to void agreements entirely where any part of the non-compete terms is considered to be overbroad and unenforceable.

Change in the direction of the President’s preference is unlikely to come to Wisconsin soon. The most recent efforts at restrictive covenant legislation have focused on making non-compete agreements easier, rather than more difficult, to enforce. This proposed legislation did not pass and some business leaders have even come out against non-compete agreements in the name of improving Wisconsin’s economy. Whether this proposal resurfaces remains to be seen in 2017.

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