Wisconsin Modifies Wage Law’s Recordkeeping Requirements

Wisconsin employers recently received some good news from the Legislature: effective April 17, 2014 employers are no longer required to keep payroll records tracking the “hours worked” of their salaried employees who are “exempt” from Wisconsin’s overtime compensation laws.  This change brings Wisconsin’s payroll recordkeeping requirements in line with those of the Federal Fair Labor Standards Act (“FLSA”). Wisconsin companies no longer have to keep precise daily or weekly time records for their salaried exempt professional, executive (i.e. managerial and supervisory), administrative, and computer professional employees.  See Wis. Stats. §104.09.

Employers who previously struggled complying with Wisconsin’s recordkeeping obligations will obviously welcome the lowered administrative burden. But this lower burden may come at a higher price – what if an employee files an overtime pay claim in court or at the Department of Labor (“DOL”) alleging that the employer “misclassified” him/her as overtime exempt?

Often in these cases an employee claims to have worked substantial amounts of overtime hours each week, and offers as “evidence”: (1) a self-serving log or spreadsheet showing a huge number of overtime hours worked; and/or (2) self-serving testimony that he/she worked all hours of the day and night, including weekends. Employers who do not have time cards to refute the claimed amount of overtime hours worked are then forced to rely on anecdotal evidence such as: (1) observations of when the employee “typically” arrived at and/or left work; or (2)  the employee’s computer “log on” and “log off” times.  The DOL or jury then decides how many overtime hours the employee worked each week.

Given this risk, employers would be well served to re-examine whether the employees they classify as “salaried exempt” truly satisfy all of an applicable exemption’s requirements.

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

 

Sue Early And Sue Often

“You got to know when to hold ’em. Know when to fold ’em.
Know when to walk away. Know when to run.”

Kenny Rogers, “The Gambler”

As certain as death and taxes, each day in this great country someone, somewhere is filing a head scratchingly stupid lawsuit.  “Sue early and sue often” seems to be the mantra in our litigious society. The latest example comes from Sin City, where a gambler is suing a casino to recover his massive gambling losses. 

The gambler’s argument?  He was too drunk to know what he was doing.  As Dr. Seuss might say, he drank in the limo on the way to the casino, he drank playing Keno*, he drank at dinner, he drank hoping to be a winner, he drank at the gaming table, he drank because he was able.

The gambler admits he was drunk for almost 3 days straight, and lost hundreds of thousands of dollars in his “blackout” state.  Now he wants his money back.  His theory?  The Las Vegas casino kept providing him “free” drinks and loans to gamble with when they knew he was blitzed.  In other words, he was the sloppy drunk overserved victim.

Personal responsibility?  That’s for losers, man!  Bad choices?  Give me a break (and a refund)!

So listen to Kenny Rogers – the man is a Grammy winning singer/songwriter, actor, roasted chicken magnate, and suspected plastic surgery aficionado after all.  Don’t gamble that your company won’t get sued.  You will, and often for ridiculous reasons.  (Remember the $2.9 Million Dollar McDonald’s lawsuit over spilled coffee?  Coffee is hot?  Who knew?)

Increase the odds of your company winning an employment lawsuit  by following sound human resources practices.  First, don’t hire losers.  Review employment applications carefully, contact employment references, and do background checks.  Second, administer clear written policies in a non-discriminatory manner. Third, document all significant personnel decisions.  Fourth, honestly communicate the reasons for termination.  And finally, don’t drink on the job.

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

*Not sure if he played Keno, but it rhymes.

Texas-Sized Employment Terminations Via Twitter

Human Resources Managers know the drill when they want to terminate an employee.  They bring the individual into a private room, tell him he is terminated, cite a couple of reasons for the termination decision, maybe give him a termination letter, and escort him out of the workplace.  Thereafter, the termination decision and reasons for it are typically only shared with those in management with a legitimate “need to know.”

But as they say, “everything is bigger in Texas,” including apparently, the way one announces an employee’s termination.  And in “BIg D” they have taken it to a new gunslinging level.

Dallas, Texas Police Chief  David O. Brown routinely announces the terminations of his law enforcement officers via his Twitter account, @DPDChief, to his 7,000 plus “followers.”  Limited by Twitter’s 140 characters, he then posts lengthier explanations for the termination on  Facebook for several thousand “friends.”

One recent example:

“I have terminated ######### for public intoxication, damaging a person’s property, and making offensive contact with a person.”

(I omitted the name – blame the lawyer in me).

Part of me likes the boldness of the strategy, and the stated goals of ensuring government accountability and transparency.  It also sends a strong message to other employees not to engage in the same conduct.  And the Dallas Police Department is doing some very creative things utilizing social media as a law enforcement strategy to catch bad guys.

But is it a sound personnel practice?  Let’s see…

Humiliating the employee to thousands of strangers?  Check.  Inviting a potential defamation lawsuit?  Check.  Locking in the employer’s position in future litigation in 140 characters or less?  Check.  Giving the City’s lawyers nightmares?  Check.  (Of course, many people would say giving lawyers nightmares is not necessarily a bad thing).

I would assume the Chief vets his Twitter posts with his legal counsel before their mass distribution.   But as anyone who uses Twitter knows, typos occur, mistakes can be made, and words can be misinterpreted.  And in employment lawsuits, words matter.

Chief Brown found out the dangers of Twitter recently:

Chief David O. Brown ‏@DPDChief  Mar 11

Today I terminated Officer Edgar Garcia for being involved in a disturbance resulting in his arrest for assault Family Violence.

Chief David O. Brown ‏@DPDChief  Mar 11

Correction: the officer terminated was Officer Edgar Garcia Martinez  

I hope the Police Department doesn’t employ an “Officer Edgar Garcia.”

From a purely legal perspective, the risks of such a practice seem to greatly outweigh any potential benefits.  Many times I have defended employers in lawsuits where it was clear the employee pursued litigation simply because he/she felt “humiliated” in how the termination was handled.  The employee was angry, feeling either the termination meeting was unduly harsh, or embarrassed by being escorted off the premises in full view of co-workers.

Now imagine the employee’s motivation to sue after having his termination and the reasons for it publicly aired to thousands of people.  Oh, and the employer still needs that little thing called “evidence” to back up the assertions in the tweet.

As any cowboy will tell you, “when you mess with the bull, you sometimes get the horns.”  Save yourself a legal goring – don’t post terminations or the reasons for them on social media sites.

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

Just Another Day

How did you celebrate Human Resources Professionals Day?  Human Resources Professionals have a tough job because of the many hats they have to wear, including:  rule enforcer, policy drafter, law follower, negotiator, confidante, investigator, advocate, interviewer, recruiter, and morale booster (to name but a few).  It’s not glamorous work, and sometimes involves highly emotional, sticky situations.  Despite this, it is often underappreciated in the corporate world, with “no news is good news” being the unstated measure of success.

So do yourself a favor – take a mental break, go for a walk, or enjoy your favorite beverage.

And then get ready for the next day of challenges.

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

The NLRB and Photo/Video Bans in the Workplace

The National Labor Relations Board just weighed in on another employer’s social media policy.   Two key holdings:  (1) the company had a duty to bargain with the union over the implementation of the policy; and (2) the company’s ban on employees taking pictures and videos on the company’s premises was unlawful.  See my full article 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

Downton Abbey & The Employment Reference

“Downton Abbey” is currently a very popular PBS television show.  It’s set on an English country estate around 1920, and focuses on the owners and the numerous “servants” that work at a large Edwardian Mansion.  Everyone has antiquated titles reflecting their social status, like “Dowager Countess,” “footman,” or “valet.”

Like any workplace, there is always drama.  Servants jockey for promotions and, in the process, often sabotage the work efforts of others.  Given the high standards expected of the servants, some poor soul always seems to be on the verge of losing his or her job for the slightest offense.

As a management-side employment law attorney, I often watch television workplace dramas with one eye out for any legal or human resources (“HR”) implications. (I know, I know, what a nerd!). Although I have only seen a few episodes, it appears to me that the servants on Downton Abbey spend an inordinate amount of time worried about whether they will receive a positive employment “reference” from Lord Grantham or Lady Crawley.  Some downright beg for one, and ominously lament that without it, they may never be able to work again.

How times have changed.  In my experience, many employees nowadays could care less about whether they receive a good reference or not.  Burning bridges is commonplace. Many employees don’t ask for employment references.  Likewise, many employers don’t give references for fear of being sued for defamation and/or retaliation, or give a bare bones “non-reference.” Prospective employers are often forced to “read between the lines,” or, worse yet, attempt to divine the meaning of the “tone” of the former employer during a brief phone call.

Regardless, a positive employment reference can still be valuable to employees and employers.  Accordingly, any employer who wants to provide more than a “name/rank/serial number” reference (perhaps in the hopes of someday getting a more detailed one in return from another employer) should consider the following admonitions:

First, an employer should only give a “good reference” to a “good employee.”  An employer that gives a favorable reference to a marginal or bad employee will very likely see that reference become Exhibit 1 in a subsequent lawsuit against it.  The employee (reasonably) thinks:  “Why was I terminated when they gave me such a glowing letter of reference?  It must be that the company discriminated against me because I am a _____.”  Giving a positive reference to an undeserving (ex)employee simply results in a “good deed getting punished.”

Second, any employer that is considering giving a positive reference should try to get something in return.  In exchange for a positive reference, obtain a signed release under which the employee waives all potential claims against the company related to his/her employment, including the provision (and contents) of the reference.

Third, control who has the authority to provide references for the company.  If possible, designate one person responsible for providing any references.  Often times this is the Human Resources Manager.  Do not let lower level supervisors or forepersons give employment references.  The reference needs to be accurate, truthful and concise.  Having an experienced professional who is careful with his or her words will ensure this.

 

3 Basic Rules For Employee Handbooks

Many employers have “Employee Handbooks” or “Employee Manuals” containing various employment policies. I think they are a necessity for most workplaces. Often, however, I see the same mistakes made by employers that utilize handbooks.  Although there are numerous tips regarding how to draft and utilize a handbook effectively, here are 3 basic rules to consider and apply:

1. Keep it (Semi) Brief.  Believe it or not, I have reviewed handbooks up to 100 pages long.  Handbooks should not aspire to be the length of a Stephen King novel.  Employees lose the will and desire to read the Handbook after about the first 2 pages anyway, so keep it brief.  Cover the main points, and wrap it up.  Shoot for 30 pages or less.

2.  Distribute the Handbook/Manual/Policies.  I know it seems obvious, but some employers guard their Handbooks/Manuals/Policies more closely than the formula for Coca Cola, and don’t actually give them to their employees.  Sometimes they only distribute them to “supervisors.”  Employees aren’t mind readers – if you want to apply a handbook’s policies to employees, you need to actually give it to them.   Post it on your Intranet, hand it out at new employee orientation, and/or email it to employees.

3.  Update your Handbook Periodically.  Having a handbook that was last updated during the Reagan Administration is sometimes worse than not having one at all.  Employment laws change.  New employment laws are constantly being implemented.  Your workforce may have grown to a size where you are now covered by certain laws (such as the FMLA’s 50 employee threshold).  Consequently, it is critical that you review and update your handbook periodically.  Try to do so at least every two years.  If you can review and update it annually, you are ahead of 90% of all other employers on the road to compliance.

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