“And on the Seventh Day … the Employee Worked” – Wisconsin Modifies its “One Day of Rest in Seven” Law

Wisconsin, like several other states, has a “One Day of Rest in Seven” law that, subject to certain exceptions, requires factory and “mercantile establishment” employers to provide their employees with “at least 24 consecutive hours of rest in every 7 consecutive days.” Wis. Stats. §103.85. 

Effective July 14, 2015 Wisconsin enacted a new exception to this requirement. Employers can now permit an employee to work seven consecutive days if the employee “states in writing that he or she voluntarily chooses to work without at least 24 consecutive hours of rest in 7 consecutive days.” Wis. Stats. §103.85 (2) (g) (at Section 3078bg). For those employees covered by a collective bargaining agreement with contrary provisions, the amendment does not become effective until “the day on which the collective bargaining agreement expires or is extended, modified, or renewed, whichever occurs first.” Id. at Section 9351.

The new exception has three key components: (1) the employee’s agreement must be in writing; (2) it must be voluntarily given; and (3) the writing must actually contain words stating that the employee voluntarily chooses to work seven consecutive days without 24 consecutive hours rest.

Of course, as the employee’s consent must be voluntarily given, an employer may not coerce an employee into providing it under the threat of discipline or some other adverse employment action. Nor may an employer discipline or discharge an employee for refusing to voluntarily agree to work 7 days straight.

Notably, the statute is silent on when the employer must obtain the employee’s written agreement. Thus, it is an open question whether an employee’s consent must be given prior to the first day worked, or just at some point prior to working the seventh day, or can actually be obtained after the employee has worked the seven days. Given the “voluntary” requirement and to avoid an allegation of coercion, it is recommended that an employer obtain the employee’s written consent at some point before the employee works the 7th consecutive day.

Technically, Wisconsin employers already had a method available to permit employees to work up to 12 days straight without a 24 hour break. To do so, an employer must merely schedule the employee’s “days of rest” on the first and last days of a two calendar week period; the employee can then lawfully work up to 12 consecutive days in-between. Wis. Admin. Code Ch. DWD §275.01(1).

Nevertheless, the new amendment gives employers further flexibility to meet changing production needs, while providing employees with additional opportunities to earn greater income at the time of their choosing.

The Cost of Doing Business Just Went Up (Again) – The DOL Proposes New Overtime Pay Regulations

“Money can’t buy you happiness, but it can buy you a yacht big enough to pull up right alongside it.”
 
– David Lee Roth (Lead Singer – Van Halen)

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The U.S. Department of Labor (“DOL”) just released proposed rules that will significantly increase the number of employees entitled to receive overtime pay under the Fair Labor Standards Act (“FLSA”). The highly anticipated changes will make an estimated 5 million currently “exempt” employees eligible for overtime pay for all hours worked over 40 in a workweek.

The major changes relate to the amount of salary required for the “executive, administrative, and professional” exemptions, and the amount of total annual pay required for the “highly compensated employee” exemption.

The proposed rule for the executive, administrative, and professional exemptions more than doubles the minimum salary level from its current level of $455 per week ($23,660 annualized) to approximately $921 per week ($47,892 annualized) in 2015, and $970 per week ($50,440 annualized) in 2016. The DOL has proposed automatically updating this salary amount so that it will increase without additional rulemaking.

The proposed rule also raises the total annual compensation required to qualify for the highly-compensated employee exemption from the $100,000 to at least $122,148. Like the base salary requirement, the DOL has also proposed updating the total annual compensation amount for this exemption so that it will increase without additional rulemaking.

Many stakeholders expected the DOL to propose changes to the “duties test” applicable to the executive, administrative, and professional exemptions. The DOL did not propose specific changes to any of the duties tests, but rather, solicited public comments on them, as well as on the proposed salary levels.

As the changes are “proposed,” they do not currently have the force of law.  They could also be modified after the public “comment period” and further DOL review.  When the final regulations are issued they will likely not take effect for several months after publication. These administrative steps will likely push the effective date of the legally binding “final” regulations into 2016.

In the interim, employers would be well served  to revisit their current “salaried exempt” classifications, as they will have some important decisons to make, including: (1) whether to increase certain job classifications’ salaries to meet the new salary thresholds; (2) whether to convert certain salaried employees to hourly non-exempt and track hours worked; (3) when to implement any changes; and (4) figuring out how to pay for the increased labor costs.

 

Four Recent HR & Employment Law Developments

As those working in human resources and my fellow employment lawyers can attest, the last few years have given us constant change.  New employment laws, new labor regulations, federal agencies aggressively enforcing both, and significant cases being issued almost daily make it tough for even the most seasoned “HR Genius” to keep on top of all of the developments.  I try to lighten the load through this Blog, but like you, only have so many hours in the day.

So,  this week I am going to lean on my management-side employment law colleagues at Michael Best & Friedrich.  Below are just a sampling of the recent articles and “client alerts” they have authored recently:

1.  Wisconsin just enacted its “Right-To-Work” Law.  What does this mean for employers in Wisconsin? Click here.

2.  The Department of Labor just issued its Final Rule revising and expanding the definition of “spouse” to include those from same sex marriages.  For more details, click here.

3.  Utah just enacted a new law prohibiting discrimination against employees on the basis of their sexual orientation and “gender identity.”  If you have operations there, then you should  click here.

4.  Do you know what constitutes a valid employment claim “release,” and when you can lawfully “require” employees to sign them?  For this information and more, click here.

Hopefully you will find these helpful in your quest to becoming (or remaining) an “HR Genius.”

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws

 

 

 

Employees Behaving Badly – The Social Media Edition

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“Privacy is dead, and social media hold the smoking gun” – Pete Cashmore, CEO of Mashable   

It seems like every week there is another story gone “viral”  of an employee posting something colossally stupid or offensive on a social media site, getting fired, and the employer left scrambling to repair its damaged reputation.  Here are just a few of the recent gems:

1.  ESPN suspended outspoken anchor Keith Olbermann for engaging in a heated twitter debate with Penn State University (“PSU”) students.  After a PSU alum brought to his attention an annual fundraiser at PSU that raised $13 million for pediatric cancer, Olbermann tweeted “PSU students are pitiful  because they’re  PSU students – period,” and called another student a “moron.”  Olbermann later apologized (via Twitter of course), calling his comments “stupid and childish.”

2.  A school bus driver thought it was a good idea to take a “selfie” holding a full bottle of beer to her lips as she sat behind the driver’s wheel, and then post it on Facebook.  Nothing says “student safety” like a brewski and a 15,000 pound vehicle, right?  The school district promptly fired the driver  after concerned parents rightfully went ballistic.  Fun Fact:  the driver never actually opened the bottle.

3. A Texas teenager fired off an expletive filled tweet complaining about starting her new job at a local pizza joint the next day, complete with a string of “thumbs-down” emoji characters:

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The boss saw it and tweeted back: “no… you don’t start the ** job today! I just fired you! Good luck with your no money, no job life.” Not to be outdone in this social media throwdown, the boss added some crying emoji faces. Not surprisingly, his corporate ownership was none too happy with the public airing of the dispute (think angry emoji faces).

So how can employers reduce their legal and reputational risks from their employees’ social media abuses?  For starters:

1. Adopt and enforce a clear social media policy. (Easier said than done given the NLRB’s views on the subject).

2. Train employees to think twice before tweeting, posting or sharing. And then think a third time.

3.  Train employees to ask themselves:  is this tweet/post/share something that I would say or do in front of my boss, my spouse, my parents, or my kids?  If not, don’t tweet/post/share it.

4.  Train employees to further ask themselves: is this tweet/post/share something that I am comfortable explaining and/or defending to the individuals mentioned above, or to a judge,  jury, or the mainstream media? If not, don’t tweet/post/share it.

 5.  Train employees to remember that although “what happens in Vegas stays in Vegas,” what happens on Twitter/Facebook/Instagram will stay on the internet forever.  Or, as they used to say,  “this will go on your permanent record.”

6.   Bottom line –  Everyone (from the CEO to the rank-and-file worker) should recognize “you are what you tweet,” and that all must choose their words, videos, pictures, and yes, emojis, carefully.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
 Twitter: @HRGeniusBar
 @wagelaws

 

 

Lies, Damn Lies and (EEOC) Statistics

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“98% of all statistics are made up”  ~Author Unknown

On February 4, 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) released its Fiscal Year 2014 Enforcement and Litigation Data”  report (“EEOC Report”).  The EEOC Report, chock full of statistics regarding employment discrimination charges brought against employers under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and other Federal statutes, is a statistician’s dream.

As Mark Twain reportedly said, however, “facts are stubborn things, but statistics are pliable.”   Perhaps not surprisingly then, the EEOC Report can be interpreted to contain good and bad news for employers:

Good news:  The total number of discrimination charges filed against employers actually fell almost 5% in fiscal 2014 from the year prior.
Bad news:     There were still 88,778 EEOC discrimination charges filed against employers in 2014. (This does not count state and local charges).

Good news:  In 2014 the EEOC dismissed 65.6% of the discrimination charges during the investigation stage.
Bad news:     In 2014 the EEOC recovered over $318 million from employers through its enforcement, settlement and litigation efforts. 

Good news:   In 2014 age discrimination charges dropped almost 20% from their peak in 2008.
Bad news:     Retaliation claims reached an all time high, comprising nearly 43% of all discrimination charges.

Good news:  The EEOC files suit in less than 8 percent of the cases where it believes discrimination occurred and no settlement is reached.
Bad news:     The EEOC filed 133 “merits” lawsuits across the country, and claims a 90% success rate at resolving matters in district court.

Hopefully 2015 will only bring your company good news.  Decrease the possibility of bad news by adopting some human resources “best practices”  found here and here.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
 Twitter: @HRGeniusBar
 @wagelaws 

 

Two More HR Mistakes To Avoid

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Having just touched the tip of the HR iceberg in my recent post  “Avoid these 3 Common HR Mistakes,” let’s dive a little deeper. Below are two more common mistakes made by companies and their human resources professionals:

Mistake #4: Failing to preserve key evidence.  Every terminated employee poses the risk of future litigation. Consequently, take steps to preserve crucial evidence. To the extent possible, save all employee voice mails that involve statements of: (1) quitting; (2) insubordination; (3) threats of violence; (4) profanity; and (5) excuses for absences unrelated to any disability (if you terminated the employee for absenteeism). Similarly, print and save screen shots of employees’ texts and social media postings, particularly if the contents reveal employee misconduct. Finally, always keep a signed and dated copy of the termination letter, and save the employee’s personnel file for at least 3 years.

Mistake #5: Failing to keep quiet. When it comes to discussing employment terminations, the less said the better. Never talk with a lawyer representing an employee. Generally, anything you say is evidence that will be used against you. For the same reason, don’t talk to an employee’s family member about their situation – he/she is not the employee. Don’t talk with anyone from a government agency unless your lawyer is present. Don’t tell individuals who do not have a “need to know” why an employee was terminated; if you can’t later prove the reason(s) for the termination you may face a defamation claim. Finally, be careful what you write in emails. Do not: (1) refer to an employee’s protected characteristics (such as race, age, gender, sexual orientation, religion, disability, etc.); (2) refer to an employee’s threat of a lawsuit; or (3) call the employee derogatory names (including “troublemaker”). Emails can and will be discovered in the course of litigation, and can be highly damaging to your case.*

Navigate around these legal icebergs in order to avoid sinking your case.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
 @wagelaws

* Portions of this article first appeared in the Wisconsin Institute of CPAs’ October, 2014 magazine, The Bottom Line.

 

 

 

Employers: Don’t Get Run Over By A Fast Track Union Election

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On December 12, 2014, the National Labor Relations Board (“NLRB”) issued its much anticipated rule changes for union elections. The rules become effective on April 14, 2015.  The new rules set forth an “accelerated election” process that gives employers much less time to communicate to their views on union representation to their employees. The NLRB has published a chart comparing the current election rules with the new election rules.  Some of the highlights of the new fast track process include:

  1. Electronic filing and transmission of election petitions and other documents.
  2. Elections will generally  be held within 20 days of the filing of the petition.
  3. The NLRB will schedule pre-election hearings within eight days after a Notice of Hearing is filed.
  4. Pre-election hearings will generally be limited to whether it is appropriate to conduct an election, and not voter eligibility or inclusion issues.
  5. After a petition has been filed, employers will be required to post an initial “NLRB Notice of Election” containing generic information about the petition and the parties’ rights and obligations.
  6. Employers will also have to fill out and submit a “Statement of Position” within seven days of receipt of the election petition that includes a list of prospective voters, their job classifications, shifts and work locations.
  7. If the employer fails to raise a particular election issue in this “Statement of Position,” it may not present evidence on the issue at the representation hearing.
  8. Individual voter eligibility issues will generally not be heard until after the election.
  9. The list of all eligible bargaining unit employees (“Excelsior list”) must be electronically filed within two (2) business days after a Direction of Election has been issued, and must include employees’ home addresses, telephone numbers and e-mail addresses.
  10. Post-election hearings will be set 14 days after the filing of objections.

Bottom line: once an election petition is filed, employers will have no time to develop an effective response strategy.  Given that the new rules do not take effect for another couple months, employers should take the opportunity now to put proactive plans in place before an election petition is filed. A solid plan should include:

  • Identifying the management team responsible for responding to a union organizing attempt
  • Developing an employee communications program to discourage employees from signing union authorization cards
  • Conducting a union organizing vulnerability analysis
  • Auditing labor relations issues, relevant company policies and human resources practices and procedures
  • Training managers and supervisors to identify the signs of potential union organizing activity, and how to lawfully respond to them
  • Developing an employee communications program in the event of an NLRB scheduled election
  • Conducting supervisor training on how to effectively manage a union-free workforce

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
 @wagelaws