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Things You Need to Know... About All Things HR:
A Day of Lists
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Join our employment attorneys for an interesting and informative "Day of Lists," an entire day devoted to the most critical aspects of the decisions and issues you face on a daily basis -- and their legal consequences, all in a unique and fun "list" format.
Cost: $175 - First person; $125 - Additional person (same company)
Location: Country Springs Hotel & Conference Center
Pewaukee, WI
Early reservation rate: $104 (for hotel registrations made by April 12, 2016)
CREDITS: We are in the process of applying for CLE credits for Minnesota, Illinois, Wisconsin, Iowa and Indiana. Approved credits will be posted. 6.5 CPE and HRCI credits available.
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Consult with experienced labor & employment lawyers whenever you need advice, without worrying about legal fees!
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For more information about Wessels Sherman's unique Phone Consultation Program, check our web page by clicking on the below link; or contact Christine Beggan at (952) 746-1700, or email her
here.
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Did You Know?
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Wessels Sherman has well-staffed offices with experienced attorneys to assist with our readers' legal needs in Wisconsin, Illinois and Iowa too. Businesses with operations/matters in these states are encouraged to call any of our attorneys for assistance. Additionally, Wessels Sherman attorneys regularly work with other lawyers as a highly cost-effective and trusted co-counsel and local counsel. Referrals are always appreciated and respected.
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Minnesota Client Alert
Legal News for Minnesota Employers
February 2016
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Already this year, the EEOC has introduced two
very significant measures that are sure to delight plaintiff lawyers while causing serious concerns for employers and their management-side attorneys, including your friends here at Wessels Sherman. The more troublesome new measure is the EEOC's proposal to significantly modify the information employers must report each year as part of the agency's EEO-1 reporting requirements. Specifically, starting in September of 2017 the proposal is to require employers to include additional information in their annual EEO-1 reports to the government, setting out pay ranges
and hours worked
for their employees. It takes little imagination to think of how a federal governmental agency such as the EEOC might use this kind of information if employers are made to disclose it, annually. Another new proposal involves new guidelines on retaliation prohibited under the various laws administered by the EEOC, such as Title VII, ADA, ADEA and EPA. These guidelines are designed to educate the public on how the EEOC views retaliation claims, which continue to be the fastest growing type of claim filed with this agency. No doubt they also will educate more plaintiffs on how to sue.
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 Minnesota Federal Court Finds Police Officer Required to Undergo Psychological Evaluation Was Not "Regarded As" Disabled
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Can employees or applicants have a claim under the Americans with Disabilities Act, if they are not even disabled? They can if they were "regarded as" disabled and were discriminated against on that basis. In a recent case, a Minnesota federal court considered whether an employer regarded an employee as having a mental impairment when it required the employee to undergo psychological evaluation. The court determined that the employer did not regard the employee as disabled, making the distinction between assuming an employee is not able to do his/her job (because of perceived anger issues) and assuming that the employee has a mental impairment that would fit the definition of a disability under the law.
In this case, the police officer in question removed his firearm prior to a meeting with his superiors, making a comment that he should not have his gun with him when he went upstairs to talk to people. Upon learning of this, the employer became concerned with the employee's ability to safely perform the duties of a police officer, and referred him for a psychological Fitness for Duty Evaluation. The evaluation found no psychological impairment that would prevent him from safely performing his duties, but concluded that he should continue to see a therapist to process anger, frustrations and suspicions. Based on this assessment, the employer directed him to participate in therapy for these purposes and to provide Human Resources with periodic written progress reports from his therapist. Additionally, based on the opinion of another psychologist who suggested that he take part in stress management or counseling before returning to duty, the employer placed him on home duty.
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Employers rightly are concerned with legal expenses; however, acting as one's own lawyer in responding to EEOC, MDHR and other agency charges of employment discrimination, retaliation or other workplace claims can be a risky proposition. Things can sometimes go terribly wrong when these claims are mishandled (e.g. when a single claim blows up into a class-action lawsuit on behalf of multiple "similarly situated" individuals). Of equal importance, however, is when important defenses are not raised, forfeiting opportunities for victory on procedural technicalities and other grounds. Calendar year 2016 has begun with several poignant examples of clever defense strategies that secured dismissal of employment lawsuits for employers.
In two recent cases, the Eighth Circuit Court of Appeals, which covers Minnesota, Iowa, Nebraska, Arkansas, Missouri and the Dakotas, dismissed employment discrimination lawsuits because the plaintiffs in those cases failed to disclose their pending discrimination claims, when they filed for bankruptcy proceedings. The court held in each of these cases that allowing the plaintiff to pursue recovery of money damages based on employment discrimination claims they failed to disclose to creditors in bankruptcy, would be inconsistent with their representations to the bankruptcy court. As a result, the court held that the plaintiff's must be stopped from proceeding with their employment claims. This is not an uncommon scenario in employment litigation, so employers named as defendants should always keep in mind the potential for dismissing a complaint on grounds that the plaintiff has filed for bankruptcy without disclosing his or her workplace lawsuit.
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Form I-9, the Employment Eligibility Verification employers must complete for all newly hired individuals, is such a simple looking two-sided form, yet there seems to be no end to the complications that it causes employers and employees alike. A recent court decision illustrates just how problematic Form I-9s can be, where the court used an employee's misrepresentations on the form years later to prevent him from becoming a lawful permanent resident. As a consequence, the individual was subject to deportation and the employer lost an employee.
The individual in question applied to become a permanent resident after marrying a U.S. citizen. However, when filling out I-9s at his various jobs, he always checked a box indicating that he was "a citizen or national of the United States." He testified that he wanted his employers to think he was a citizen, because he believed he would lose his job if he was not a citizen. An individual is inadmissible to the United States, and ineligible to become a permanent resident if he falsely represents himself as a citizen of the United States for any purpose or benefit under the Immigration and Nationality Act. Although an individual is not inadmissible for falsely representing himself as a national, the court determined, based on his testimony that he was intending to represent himself as a citizen, not a national, by checking that box.
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Don't Understand What Handbook Provisions/Social Media Policies the NLRB Would Find Lawful or a Violation Federal Labor Law? Let Wessels Sherman Help...for Free!
The NLRB's decisions with regard to employer policies on social media, confidentiality, etc. are confusing, at best, and offer little guidance from one decision to the next on how the Board will view a specific policy in a particular situation. Often, these decisions will turn on a single word, and at times, the very same language will be found to be lawful or unlawful based on the handbook as a whole or the timing of the policy's enactment. The best guidance available to employers are the many Board decisions that have been issued in recent years. Our
free summary does the work for employers, setting out succinctly many key decisions of which policies pass or fail NLRB scrutiny. For a free copy of this summary, contact Ms. Chrissy Beggan at
chbeggan@wesselssherman.com.
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