“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.

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:

fired

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.

 

 

 

Avoid These 3 Common HR Mistakes

The numbers are simply staggering: In 2013, individuals filed over 93,000 employment discrimination charges with the Equal Employment Opportunity Commission (“EEOC”). The EEOC collected $372 Million in damages from employers during that time. Similarly, thousands of minimum wage and overtime claims were brought against companies under the Fair Labor Standards Act, and the Department of Labor collected $250 Million in back pay damages in 2013. Moreover, approximately 20% of the lawsuits filed in Federal Court in 2013 stemmed from an employment dispute. It feels like litigation roulette – you never know when your company’s time is up, but if you keep playing the game (i.e. running your business), eventually you will get sued.

Given this, companies should take steps to reduce the risk of becoming the next defendant, and put themselves in a solid defensive position. One way to do so is to avoid making one of these 3 common human resources (“HR”) mistakes:

Mistake #1: Failing to properly screen applicants. Remember the old principle “garbage in, garbage out”? Hire a loser and all you get is a loser employee you can’t get rid of fast enough. How about avoiding that hassle? Start with a laser-like focus on the employment application. Has the applicant never held a job longer than 3 months? If so, why do you think he would last any longer at your place? Has the applicant conveniently failed to answer the “reason for leaving” question after a former employer’s name? This silence should speak volumes. Worse yet, does it say something disturbing like “dispute with supervisor”? And how did the applicant answer the “conviction record” question? These answers and/or omissions all need to be addressed with the applicant. Trust but verify with reference checks; a recent survey of hiring managers revealed that 60% found false information on applicants’ job applications and/or resumes. Finally, never hire someone based solely on the recommendation of a friend or co-worker.

Mistake #2: Failing to terminate a poorly performing employee. Not all hires turn out well. Some employees are simply poor performers. But why are they still employed by your company? Are you running a business or a charity? Managers should give employees clear performance expectations. If an employee fails to meet them, he should receive progressive discipline. If the employee still does not improve his performance, the company should terminate his employment. Consider the alternative – lowered workforce morale and a less profitable company bottom line. Retaining a poor performing employee can also result in a good deed getting punished: if you terminate someone else for the same poor level of performance, and the terminated employee falls into a different “protected classification,” you will be sued for discrimination. Like bad wine, life is too short to work with bad employees. If you have the opportunity to terminate one, take it.

Mistake #3: Failing to recognize threat levels. You need to be able to recognize potential legal risks and plan accordingly. Does the employee you intend to terminate fall into one or more protected classifications (i.e. race, over 40, disabled, etc.)? Has the employee mentioned an “L word” – lawyer or lawsuit? Has the employee referenced the “EEOC” or “discrimination”? Has the employee cited chapter and verse of the requirements of a particular statute? Has the employee requested a copy of her personnel file? Is the employee trying to tape record conversations? If any of these have occurred, you are approaching litigation threat level “DEFCON 1.” To reduce the threat, make sure that you have all of the facts, have reviewed the employee’s prior disciplinary record, have looked at your disciplinary practice in comparable situations, have adequate documentation, and a legitimate business reason for the employment decision.*

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 CPA’s October, 2014 magazine, The Bottom Line.

 

 

 

 

If Your Employee Does This … You Might Be Getting Sued

“If you’ve ever had to remove a toothpick for wedding pictures, you might be a redneck.” 

-Jeff Foxworthy

jeff-foxworthy-2__large

Remember Comedian Jeff Foxworthy’s “you might be a redneck” jokes?   They were tell-tale signs of human behavior that revealed a person was a classless and/or clueless hick. They were funny because you either knew someone who acted like the character in the joke, or could easily see someone behaving that way.

But, my human resources (“HR”) and management friends, did you know that there are also tell-tale signs of employee behavior that reveal that your company will likely be sued?

So without further ado (and with apologies to Mr. Foxworthy), put your hands together and give a warm HR welcome to this Edition of  “You Might Be a Redneck Getting Sued”:

1. If your employee submits a 4 page, single-spaced typed rebuttal to a verbal warning, you might be getting sued.

(And if your dog and your wallet are both on a chain, you might be a redneck)*

2.  If your employee urgently demands a copy of his personnel file and says he needs to take the afternoon off for “personal business,” you might be getting sued.

(And if you’ve ever financed a tattoo, you might be a redneck)

3.  If your employee attempts to tape record her performance review, you might be getting sued.

(And if you have the local taxidermist’s number on speed dial, you might be a redneck)

4.  If your employee recites the requirements of an employment law statute better than your HR Department can, you might be getting sued.

(And if you’ve been on TV more than 3 times describing the sound of a tornado, you might be a redneck)

5.  If your 70 year old employee (with 35 years of service) that you just terminated has a personnel file thinner than a potato chip, you might be getting sued.

(And if you think the French Riviera is foreign car, you might be a redneck)

6.  If your employee walks around with a bulging notebook documenting every conversation she has had with co-workers and supervisors, you might be getting sued.

(And if you’ve ever mowed your lawn and found a car, you might be a redneck)  

7.  If your employee goes on an epic Facebook rant that his supervisor is treating him “unfairly,”  you might be getting sued.

(And, finally, if your idea of a “7-course meal” is a bucket of KFC and a six-pack, you might be a redneck)

Ba dom bomp!  Thank you! Don’t forget to tip your waiters and waitresses. I will be here all week…

Of course, getting sued by an employee is no laughing matter. Watch for the above warnings signs.  If you observe any of them, make sure that you have a sound business reason (backed up by sufficient documentation) before taking any disciplinary action against the employee.  Otherwise, the joke will be on you.

*All jokes courtesy of Mr. Foxworthy

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