Monday, February 25, 2013

"Like" Enochs Law Firm on Facebook!

I just wanted to invite everyone to "Like" Enochs Law Firm's newly-designed Facebook page!  Thanks in advance and feel free to share links to your firm's Facebook page.

What is Boyton Cab Co. v. Neubeck in Unemployment Cases?

Present in nearly every unemployment compensation appeal decision is discussion about Boyton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636 (1941) as it applies to "misconduct."  This confuses non-lawyers and claimants and the easiest way to explain why it's put into these decisions by Administrative Law Judges (ALJ) is that this is the precedent unemployment ALJ's use to determine whether misconduct occurred as "misconduct" was defined in Boyton Cab.

The definition as set forth in Boyton Cab is:
[T]he intended meaning of the term "misconduct" ... is limited to conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or the employee's duties and obligations to his employer.  On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute.
Therein lies the confusion as this is a lengthy definition.  The determination of whether a claimant engaged in "misconduct" is not an easy determination and the reason why evidentiary hearings are held on the record before ALJs.

Although the Boyton Cab standard is framed in terms of intent, the employee's actual state of mind is not the determinative factor.  The issue is what a reasonable person would have intended by the conduct.  Misconduct is NOT the same as good cause for discharge.  Because misconduct cases are fact-intensive and because the standard is what a reasonable person would have intended by the conduct, factors such as frequency, intent, negligence, the employee's knowledge of the conduct's impropriety, and the effect of the conduct on the employer are all relevant, but none is dispositive on their own.

Another common misunderstanding or misinterpretation of when an ALJ finds that a claimant was terminated but NOT for misconduct connected to their employment is the implication the unemployment insurance division is suggesting the termination was unlawful or a wrongful termination, which is not the case.  The issue in unemployment compensation cases is whether a claimant is eligible for unemployment insurance, not whether the termination itself was unlawful, which is an incredibly important thing to understand.

Thursday, February 21, 2013

Governor Walker Proposes Huge Budget Cuts to Wisconsin Employment Relations Commission

Wisconsin Governor Scott Walker is continuing his decimation of government involvement in disputes between public employee unions and their employers with his budget cut proposal that would attach the free-standing commission, the Wisconsin Employment Relations Commission (WERC), to a larger agency, see its staff positions cut from 25.5 to 9 and its budget would be cut to $1.5 million a year from $3.2 million.  

WERC suffered an obvious reduction in work load after Walker repealed most collective bargaining for most public workers in 2011 that nearly led to his repeal.

Wednesday, February 20, 2013

Supreme Court to Decide What is "Clothes" Under the FLSA

In a case only lawyers that practice wage & hour law can fully appreciate, the Supreme Court of the United States announced that it has granted cert in Sandifer v. United States Steel Corp., +678 F.3d 590, 595 (7th Cir. 2012), cert. granted (U.S. Feb. 19, 2013) (No. 12-417), a case involving the issue of  what constitutes and defines "clothes" for purposes of the Fair Labor Standards Act ("FLSA").  

The FLSA allows an employer to exclude time spent "changing clothes" from working time as long as the employees agree to this in a collective bargaining agreement or if there is a long history of non-payment in the industry and the employees knew about and agreed to the practice. +29 U.S.C. § 203(o).  The plaintiff's in Sandifer are members of a union who work at US Steel Corporation's Gary Works, the largest integrated steel mill in North America. Before starting their shifts, the workers put on safety gear in a locker room. Because of the large size of the plant some of the workers traveled to their work stations on buses. After their shifts ended, they returned to the locker room and removed the gear. The process of putting on gear and traveling to the work site at the start of the day and then returning to the locker room and removing the gear at the end of the day sometimes added up to several hours per week, which is where the money adds up.
The employees filed suit against United States Steel Corp., arguing that the "highly specialized gear" they put on and took off did not count as "clothes" within the meaning of 29 U.S.C. § 203(o). A federal district court and then the 7th Circuit Court of Appeals rejected these claims, so they appealed to the Supreme Court, which accepted cert just yesterday.
This is an issue that has been needing Supreme Court cert for quite some time and in the plaintiff's petition to the Supreme Court for cert, they noted the tremendous split amongst the circuits:
  • The 4th, 6th, 10th and 11th Circuits have held that clothes includes anything an employee wears, an interpretation that would cover several types of safety gear that do not resemble ordinary clothing, such as flame-retardant or aluminized "snoods" designed to protect the head and neck, flame-retardant wristlets that cover the forearm from the elbow to the hand and flame-retardant spats;
  • The 7th Circuit has held that "not everything a person wears is clothing," and so the § 203(o) exception does not cover protective items that would not usually be described as clothes but are generally available and used in a wide variety of other circumstances, such as protective goggles, ear plugs and hard hats; and
  • The 9th Circuit has held that clothes does not include "specialized protective gear ... different in kind from typical clothing," an interpretation that would exclude items that resemble ordinary clothing but have special safety-related elements, such as fire-retardant jackets, fire-retardant pants and steel-toed boots.
The Supreme Court declined to take up a second issue of whether changing clothes can constitute a principal activity under the FLSA, even if it is excluded from working time under § 203(o). If this were the case, then all the time the employees spend on a bus riding to and from the locker rooms would be compensable working time under the FLSA regardless of whether their gear is clothes.

I've written about this topic previously here and here.

Monday, February 18, 2013

February Employment Law Blog Carnival: Love is in the Air!

Welcome to the February 2013 Edition of the Employment Law Blog Carnival.  February is typically known for the commercial holiday of Valentine's Day so I thought I'd use a love-based theme for our not-so-loving area of practice.  Toward that end, I begin with my latest post on a Kansas Supreme Court decision finding exotic dancers at a strip club were not classified correctly as independent contractors and were in fact employees for unemployment insurance purposes:

Those dancers are employees, but nice try, "gentlemen's club" in Kansas.-Wisconsin Employment & Labor Law Blog

From Win-Win HR authored by Lorene Schaefer, Esq. comes the heart-breaking story of Greenberg Traurig being accused of cheating on the confidentiality provision in a mediation agreement.

Heather Bussing of HR Examiner invites us to look into our hearts and minds in "Rethinking Discrimination."

Sometimes staying connected is the key to finding love AND employment again, as Michael D. Haberman highlights over at HR Observations Blog.

Jesse Dill of Arnstein & Lehr's "General Counsel" blog highlights a case of emotion in Wisconsin involving a wage & hour claim that yielded a jury award of $3,648 but a demand of $120,000 in attorney's fees.

When love nets offspring, that often leads to a tricky workplace issue involving leave.  Dawn Lomer of i-Sight explores the EEOC's Updated Accommodation Requirements for Pregnant Workers.

Though it may not be a good idea to evaluate our loved ones on a piece of paper that they may discover, it is a good idea for this to be done for employers for their employees on their performance as Mark Toth over at Manpower's The Employment Blawg

When it comes to the love, care and employer penalty provisions under the Affordable Care Act, Robert Ellerbrock of Constagy, Brooks & Smith, LLP highlights the IRS' proposed regulations on the calculation and determination of such for employers to consider.

Just as trust is important in any loving relationship, so is being aware of  the U.S. Department of Health and Human Services' (HHS) new final regulations on several aspects of compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as authored by Brian Magargle, also of Constagy, Brooks & Smith, LLP.

Tips always come in handy to maintain good relationships and avoid lawsuits and CPEHR's Small Biz HR Blog ten time-keeping tips to avoid a lawsuit.

Whether it's a loved one not happy in a relationship or an employee with a qualified disability who requests an accommodation, John Holmquist over at the Michigan Employment Law Connection blog highlights the need to engage in the interactive process.

Sometimes in a break-up we give certain personal items back and sometimes when an employment relationship ends, employers give a severance agreement.  Janette Levey Frisch of The Emplawyerologist provides us with a two-part series on severance agreements here and here.

As the famous saying goes, "there's a thin line between love and hate," Tim Eavenson at Current Employment shows there's a thin line between sexual harassment that nets a $100,000 EEOC settlement and harassment that isn't actionable at all.

Whether it's a divorce or a long-term relationship that ends, sometimes people feel like they wasted months-to-years of their lives with someone.  Nilesh Patel on his blog for the Mahadev Law Group discusses the NLRB's wasted time and decisions in the aftermath of the U.S. Court of Appeals for the DC Circuit's ruling that recent Board members were appointed in an unconstitutional manner and the Board has not had a quorum to conduct any business since January 2012.

Most experts agree that communication is key to a successful relationship and Donna Ballman over at "Screw You Guys, I'm Going Home" points out that communicating salary with coworkers is lawful and your right under the NLRA (in most circumstances).

Sometimes "labels" can be confusing in relationships and the same goes for avoiding misclassifications issues under the FLSA as pointed out by Mitchel W. Quick at the HR Genius Bar blog.

The FMLA recently celebrated its 20th birthday and Jon Hyman of the Ohio Employer's Law Blog shows that his own research reveals it's not so easy for employers to adhere to and comply with the FMLA's rules and guidelines.

In some news from the north in Canada, Stuart Rudner of Canadian HR Law highlights a case where a court sided with a mother who wanted to pick her own work hours as a reasonable accommodation to care for her child.

Whether in a marriage or a regular relationship, it is important to uphold ends of an agreement and Joseph Leonoro over at Steptoe & Johnson's Employment Essentials discusses a United States Supreme Court case overruling the Oklahoma Supreme Court's decision holding that a state court could review an agreement despite an agreement in place agreeing to resolve all disputes in arbitration.

Sometimes someone in a relationship doesn't want to break up and this leads to heated, emotional arguing.  Employers who seek to avoid this often place "at-will employment" disclaimers in their handbooks and Robert B. Fitzpatrick over at Fitzpatrick on Employment Law briefly discusses a recent 4th Circuit opinion finding such a disclaimer effective.

Last, but certainly not least, recent studies and surveys show social media, especially Facebook, results in more and more divorces and break ups and the employment context is no exception as Eric B. Meyer at The Employer Handbook displays a case of a woman losing her FMLA claim over photos on her Facebook page utterly contradicting what she claimed were her serious health conditions.

I thank you all for visiting this month's edition of the Employment Law Carnival Blog and hope you all bookmark and come back soon!