Category Archives: Employment

Trump’s DOL Splits the Baby in New Overtime Regulations

By: Attorney Stephen L. Weld – Weld Riley, S.C.

During the Obama Presidency, the Department of Labor (DOL) proposed significant changes to the rules implementing the so-called “white collar” exemptions to the Fair Labor Standards Act (FLSA).  Under the FLSA, employees are considered hourly, with overtime premiums required for hours worked over 40 in a week, unless they are paid by salary and their job duties fit into one of the exemptions – executive, administrative, or professional (EAP). 

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Lurking Liability for Inaccessible Websites

By: Attorney David A. Richie – Weld Riley, S.C.

The Americans with Disabilities Act (ADA) is the most far-reaching accessibility legislation in the country.  When one thinks of “accessibility” under the ADA, perhaps images of buildings with wheelchair ramps or bathrooms with “men” and “women” written in Braille come to mind.  Less likely to come to mind – but proving to be equally as important – is ensuring that an organization’s or municipality’s website is ADA accessible.

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NLRB Kicks Skycap’s Wrongful Discharge Claim to the Curb: Employee’s Comment in Group Setting is Mere Gripe

By: Attorney Bryan T. Symes – Weld Riley, S.C.

Earlier this year, the National Labor Relations Board eliminated a bit of baggage remaining from the previous regime, when it determined that an employee’s comment—arguably concerning his wages and working conditions—when made in a group setting involving coworkers and management, is not per se “concerted” activity that may be eligible for protection under the National Labor Relations Act.    This is a significant development for employers, because the Board has now narrowed the circumstances under which employees may invoke the protection the Act.   The case is Alstate Maintenance, LLC, 367 NLRB No. 68 (2019).  

Continue reading NLRB Kicks Skycap’s Wrongful Discharge Claim to the Curb: Employee’s Comment in Group Setting is Mere Gripe

The Law of Unintended Consequences: Federal Tax Provision Designed to Address “Me Too” Issue is Creating Confusion and Uncertainty

By: Attorney Jerilyn Jacobs – Weld Riley, S.C.

After the initial news story detailing numerous accusations of sexual harassment against movie producer Harvey Weinstein broke in October 2017, a tidal wave of allegations and revelations followed. Amongst the revelations were numerous accounts of instances where a company employing a high-level executive or other high-profile, highly paid individual settled a sexual harassment claim – or sometimes multiple claims – with the claimant or claimants being prohibited from talking about the terms due to a nondisclosure agreement. One of the focal points of the subsequent “me too” movement was to encourage victims of harassment and sexual abuse to speak up and tell their stories. The 2017 Time Person of the Year issue, published on December 18, 2017, featured prominent women who had recently told their stories. The magazine’s cover called them “The Silence Breakers.”

Continue reading The Law of Unintended Consequences: Federal Tax Provision Designed to Address “Me Too” Issue is Creating Confusion and Uncertainty

DOL Provides Opinion Letter Concerning “Reasonable Relationship” Test for Exempt Status

By: Attorney David A. Richie – Weld Riley, S.C.

If you’re reading this blog, you’re probably familiar with the Fair Labor Standards Act (FLSA); it’s the law that requires employers to pay their employees for overtime and at least minimum wage.  What you might not be as familiar with is the “executive, administrative, or professional employee” exemption that allows employers to avoid these requirements.  29 U.S.C. § 213(a)(1).  Typically, an employee must be paid on a “salary basis” to take advantage of the exemption.  What happens, though, when an employee earns a guaranteed weekly salary, but also gets paid on an hourly, daily, or shift basis?  Can such an employee still qualify for the exemption?   Thankfully for employers – who are subject to steep penalties for misclassifying their employees – the Department of Labor’s Wage and Hour Division (WHD) addressed this question in a recent opinion letter.

Continue reading DOL Provides Opinion Letter Concerning “Reasonable Relationship” Test for Exempt Status

Safety First – Trump OSHA Makes Employer Post-Accident Drug Testing Safe Again

By Attorney Bryan T. Symes and Attorney David A. Richie – Weld Riley, S.C.

Under prior Obama-OSHA guidance addressing post-accident drug testing [issued on May 12, 2016], employers often faced an unenviable dilemma when accidents happened—test in an environment marked by uncertainty caused by a lack of clear administrative guidance about how employers must determine if a drug likely contributed to the accident [OSHA’s “bee sting” example was not terribly instructive], or forego testing altogether.  Understandably, without clear direction, employers were concerned that testing could be viewed as retaliatory under the Obama-OSHA guidance. Since May 12, 2016, the employer community has been clamoring for better, clearer direction.

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Expunction Junction, What’s Your Function: Labor and Industry Review Commission Determines that “Substantial Relationship” Defense Cannot Be Based Upon Expunged Convictions

By Attorney Bryan T. Symes – Weld Riley, S.C.

Recently, the State of Wisconsin Labor and Industry Review Commission (“LIRC”) provided the employer community with an educational nugget concerning how to best, proactively analyze potential conviction-record discrimination scenarios in connection with applicants and current employees.    More specifically, through its opinion in Staten v. Holton Manor, a copy of which is available here: http://lirc.wisconsin.gov/erdecsns/1533.htm, LIRC determined that the oft-cited “substantial relationship” defense is unavailable when an employer predicates an employment-related decision on an applicant’s/employee’s expunged conviction record.

Continue reading Expunction Junction, What’s Your Function: Labor and Industry Review Commission Determines that “Substantial Relationship” Defense Cannot Be Based Upon Expunged Convictions

No Cakewalk: SCOTUS to Determine Proper Interplay Between Religious Liberty Rights and Anti-Discrimination Law

By Attorney Bryan T. Symes – Weld Riley, S.C.

Recently, during a supervisor-training session I conducted with one of my colleagues to address the “#MeToo uprising,” upper-management personnel asked me about the workplace implications, if any, of the Masterpiece Cakeshop case that is set to be heard by the Supreme Court of the United States (“SCOTUS”) tomorrow, December 5, 2017.   I responded that reconciling religious liberty rights and anti-discrimination protections is no cakewalk [if you know me, you know this cheesy pun is totally intended]—and that I don’t envy the Justices in the slightest. Continue reading No Cakewalk: SCOTUS to Determine Proper Interplay Between Religious Liberty Rights and Anti-Discrimination Law

Hit the Road Jack: Trucking Company Had Just Cause To Terminate Employee’s Employment for Violating Work Rules

By Attorney Bryan Symes

Employers are generally much more restricted in connection with employee discipline in the unionized workplace setting.   To that end, one hallmark of the typical employer/union relationship is the existence of a labor agreement that incorporates the so-called “just cause” standard of employee discipline—which is in stark contrast to the concept of “at-will” employment applicable to most non-union work environments.   In the unionized workplace setting, what is, and what is not, appropriate in terms of discipline for employee misconduct under the “just cause” standard has developed through decades worth of labor-arbitration decisions.    One recent labor-arbitration decision is the latest reminder of what an employer must do to increase the likelihood that a termination decision will withstand “just cause” scrutiny.   The decision is In re ADM Trucking, Inc. and Bakery, Confectionary, Tobacco Workers, and Grain Millers International Union, Local 103G, 137 LA 1469 (Oct. 5, 2017).  Continue reading Hit the Road Jack: Trucking Company Had Just Cause To Terminate Employee’s Employment for Violating Work Rules

Federal Court to Whole Foods – Candid Camera Policy No Laughing Matter under the NLRA

By: Attorney Bryan Symes

Recently, the federal Second Circuit Court of Appeals [which makes decisions primarily impacting businesses located in Connecticut, New York and Vermont], in an unpublished summary order [which carries no precedential impact], upheld a National Labor Relations Board decision that the popular grocery chain, Whole Foods, violated the National Labor Relations Act by maintaining an overly-broad no-recording policy.   The opinion comes in Whole Foods Mkt. Grp., Inc. v. NLRB, Case No. 16-346, Doc. No. 81-1, available here.

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For Crying Out Loud: Employee’s Out-of-Character Tears Place Employer on Constructive Notice of Need For FMLA Leave

By: Attorney Bryan Symes

Okay, so there’s no crying is baseball—that much we know with certainty [thank you, Tom Hanks].   Not the case with workplaces, however.   In fact, recently, a federal court sitting in Illinois addressed whether a former employee—who “began crying regularly and uncontrollably at work”—placed her former employer on notice of a need for FMLA leave.  The case is Valdivia v. Township High School, District 214, available here.   In Valdivia, the former employee alleged that her employer interfered with her rights under the FMLA by failing to provide her with notice that she had a right to take job-protected leave under the FMLA, even though her former employer allegedly knew or should have known that she suffered from a medical condition that made performing her job untenable. 

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