U. S. Supreme Court to Rule on Constitutionality of Affordable Care Act

by Neil L. Wojtal

The Supreme Court has agreed to hear the arguments brought by 26 states questioning the right of Congress to mandate Americans to purchase health care coverage. The Court has agreed to hear oral arguments on the following issues:

1.      Two hours on the constitutionality of the requirement that virtually every American obtain health insurance by 2014.

2.      Ninety minutes on whether some or all of the overall law must fail if the mandate is struck down as unconstitutional.

3.      One hour on whether the Anti – Injunction Act bars some or all of the challenges to the insurance mandate brought by the 26 states that joined in the lawsuit. The Anti-Injunction Act prohibits a federal court from issuing an injunction against a proceeding in state court.

4.      One hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. This issue focuses on whether the states can be forced by the federal government to expand their share of Medicaid costs and administrative expenses with the risk of losing federal funding if they refuse.

The underlying issue is whether the commerce clause of the U. S. Constitution supports the right of Congress to pass the Act which includes the insurance mandate or whether the Act violates the commerce clause and is therefore unconstitutional.

The Court will probably hear oral arguments in February or March, 2012 with an opinion expected in June, 2012.

VOW to Hire Heroes Act of 2011

by Neil L. Wojtal

On November 10, 2011 the Senate passed the VOW to Hire Heroes Act. The Act is intended to help the approximately 900,000 unemployed veterans find jobs and to provide incentives to employers who hire them.

The highlights of the Act are:

1.      The Act provides the nearly 100,000 unemployed veterans of past eras and wars with up to one year of additional Montgomery GI Bill benefits to qualify for jobs in high demand sectors. It also provides disabled veterans who have exhausted their unemployment benefits with up to one year of additional VA vocational and employment benefits.

2.      The Act makes the Transition Assistance Program (TAP) mandatory for most veterans transitioning to civilian status and provides them with resources for upgrading their job hunting skills in today’s job market.

3.      Veterans will be able to begin the federal employment process by acquiring veterans’ preference status prior to service separation which will allow them to speed up the hiring process when applying for federal agency jobs.

4.      The Act will require the Department of Labor to look at how to translate military skills and training to civilian sector jobs and make it easier for veterans to get required licenses and certifications.

5.      The Act provides for the following tax credits for employers who hire veterans.

a.      $2,400 for employers who hire veterans who have been unemployed for more than four weeks but less than six months

b.      $5,600 for employers who hire veterans unemployed for more than six months.

c.       $9,600 for employers who hire veterans with service connected liabilities that have been unemployed for more than six months.

Note that Congress has ensured that the Act is completely paid for with existing revenue and does not increase the federal deficit.

Changes to Automobile Insurance Coverage as of November 1, 2011

By Neil L. Wojtal

In April, 2011 changes were passed by the Wisconsin State Legislature which returned the limits on coverage and the types of coverage to pre-2009 levels.  Here are the changes that will go into effect on November 1, 2011:

1.      Policies issued before November 1, 2011 are required to cover $50,000 per injured person, $100,000 per accident and $15,000 for property damage. As of November 1, the minimum amount of coverage required will be $25,000 per injured person, $50,000 per accident and $10,000 for property damage.

2.      Minimum protection for uninsured motorists (UM) will change from $100,000 per person and $300,000 per accident to $25,000 per person and $50,000 per accident.

3.      Underinsured Motorist (UIM) protection will no longer be mandatory under the new law. If you elect to carry this coverage, the minimum amount of coverage has been reduced from $100,000 per person and $300,000 per accident to $50,000 per person and $100,000 per accident.

4.      Note that policyholders will no longer be guaranteed the option of “stacking” coverage. Stacking allows a policyholder to stack coverage if they insure multiple vehicles. For example, if three vehicles are covered under the same policy and each has $100,000 in UM protection, each vehicle would have access to $300,000 worth of UM coverage through stacking. Stacking only applies to UM, UIM and medical payment coverage. Insurers may still permit stacking after November 1; however, they are not required to permit it.

5.      Medical payments insurance will remain optional under the new law; however, the minimum amount of protection will decrease from $10,000 to $1,000.

6.      Automobile insurance coverage will remain mandatory. All drivers in Wisconsin will be required to maintain a policy in order to drive legally.

7.      Another change allows insurers to place previously uninsured or new drivers in a high-risk category. Typically, the high-risk category requires higher premium payments.

If you have automobile coverage, especially coverage for UM, UIM and medical payments, you may want to review your coverage with your insurance agent at this time to see how the changes in the Wisconsin state laws will affect you.

ALERT: No Match Letters from SSA

By: Neil L. Wojtal

In 2007 the Social Security Administration (SSA) stopped sending no-match letters to employers. The letters had been sent out when an employee’s name or social security number (SSN) did not match the SSA’s records. As of April, 2011, SSA has started mailing the letters again.

What should an employer do if they receive a no-match letter from the SSA?

1.       Do not immediately terminate the employee. There could be a number of reasons for a no-match that have nothing to do with the validity of the SSN. These include: an input error at SSA, a reporting error by the employer or employee, hyphenated or multiple last names or an unreported name change. Termination may open an employer to discrimination claims for national origin and citizenship status by the U. S. Department of Justice Office of Special Counsel for Immigration Related Unfair Employment Practices.

2.       Give the employee written notice of the no match.

3.       Review the employee’s W-4 and I-9 with the employee. Check the SSA number verification system to make sure the information entered into the system is correct. You can access the system by going to the following SSA site:

http://www.ssa.gov/employer/ssnv.htm

4.       If you find an error, report the error to the SSA using Form W-2c.

5.       If no error is found, the employee must follow up with the SSA and the employer should follow up with the employee to see if the employee has done so.

6.       In the event the employee does not follow up and does not provide the employer with documentation or a credible explanation of good faith efforts to correct the problem, the employer could terminate the employee. Note that the employer must give the employee a reasonable amount of time to correct the problem. No guidelines are provided by the SSA, however, 120 days appears to be an acceptable period of time.

7.       In the event the employee produces a new SSN, an employer can ask the employee to fill out a new I-9 form if the employee had used their SSN as a list C document. The new I-9 form should be attached to the original I-9 form with a written explanation. This will help if the employer is audited by Immigration and Customs Enforcement (ICE).

It is important to remember that a SSN does establish a person’s authorization to work in the U. S. However, use of the no match letter to terminate employment immediately can open an employer to discrimination claims since there are mistakes in the system as stated in No. 1 above. The best way to avoid no match letters is to use the Social Security Number Verification System to verify SSNs after you hire an employee. Note that the system cannot be used to exclude an employee from employment given the inaccuracies in the system as stated in No. 1 above.

An employer can also use the E-Verify System to verify that an employee is authorized to work in the U. S. Note that E-Verify cannot be used to screen potential employees. It can only be used for current employees. The E-Verify System can be found at: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e94888e60a405110VgnVCM1000004718190aRCRD&vgnextchannel=e94888e60a405110VgnVCM1000004718190aRCRD

By using the systems available, and by taking the precautions stated above, an employer can reduce or avoid receiving a no match letter from the SSA and, if one is received, reduce exposure to discrimination claims by taking appropriate action.

New Visa Scam

August 18, 2011

To: All Business Associates and Friends

From: Neil L. Wojtal

RE: Visa / MasterCard FRAUD

I received this information from a business associate today. I am passing it along to alert you to this potentially costly scam.

“This is a heads up for everyone regarding the latest in Visa fraud.

Royal Bank received this communication about the newest scam.

This is happening in the Midwest right now and moving throughout the U. S. 

This one is pretty slick since they provide YOU with all the information, except the one piece they want. 

Note, the callers do not ask for your card number; they already have it. 

This information is worth reading. By understanding how the VISA & MasterCard telephone Credit Card Scam works, you'll be better prepared to protect yourself. One of our employees was called on Wednesday from 'VISA', and I was called on Thursday from 'MasterCard'. 

The scam works like this: 

Person calling says - 'This is (name), and I'm calling from the Security and Fraud Department at VISA. My Badge number is 12460, your card has been flagged for an unusual purchase pattern, and I'm calling to verify. This would be on your VISA card which was issued by (name of bank). Did you purchase an Anti-Telemarketing Device for $497.99 from a marketing company based in Arizona?' When you say 'No', the caller continues with, 'Then we will be issuing a credit to your account. This is a company we have been watching and the charges range from $297 to $497, just under

the $500 purchase pattern that flags most cards. Before your next statement, the credit will be sent to (gives you your address), is that correct?' You say 'yes'. 

The caller continues - 'I will be starting a Fraud Investigation. If you have any questions, you should call the 1- 800 number listed on the back of your card (1-800-VISA) and ask for Security. You will need to refer to this Control Number. The caller then gives you a 6 digit number. 'Do you need me to read it again?' 

Here's the IMPORTANT part on how the scam works - The caller then says, 'I need to verify you are in possession of your card'. He'll ask you to 'turn your card over and look for some numbers'. There are 7 numbers; the first 4 are part of your card number, the last 3 are the Security Numbers that verify you are the possessor of the card. These are the numbers you sometimes use to make Internet purchases to prove you have the card. The caller will ask you to read the last 3 numbers to him. After you tell the caller the 3 numbers, he'll say, 'That is correct, I just needed to verify that the card has not been lost or stolen, and that you still have your card Do you have any other questions?' 

After you say no, the caller then thanks you and states, 'Don't hesitate to call back if

you do', and hangs up. You actually say very little, and they never ask for or tell you the card number. But after we were called on Wednesday, we called back. Within 20 minutes to ask a question. Are we were glad we did! The REAL VISA Security Department told us it was a scam and in the last 15 minutes a new purchase of $497.99 was charged to our card. We made a real fraud report and closed the VISA account. VISA is reissuing us a new number. What the scammers want is the 3-digit PIN number on the back of the card. Don't give it to them. Instead, tell them you'll call

VISA or Master Card directly for verification of their conversation. 

The real VISA told us that they will never ask for anything on the card as they already know the information since they issued the card! If you give the scammers your 3 Digit PIN Number, you think you're receiving a credit; however, by the time you get your statement you'll see charges for purchases you didn't make, and by then it's almost too late and/or more difficult to actually file a fraud report. 

What makes this more remarkable is that on Thursday, I got a call from a 'Jason Richardson of MasterCard' with a word-for-word repeat of the VISA Scam. This time I didn't let him finish. I hung up! We filed a police report, as instructed by VISA. The police said they are taking several of these reports daily! They also urged us to tell everybody we know that this scam is happening. I dealt with a similar situation this morning, with the caller telling me that $3,097 had been charged to my account for

plane tickets to Spain, and so on through the above routine. 

It appears that this is a very active scam, and evidently quite successful.” 

Pass this on to all your family, friends and business associates. We must help to protect each other against these thieves.

Wisconsin Estate Planning Tips Part 3

WILLS
by Neil L. Wojtal

 A Will is a written document that sets forth your wishes concerning the distribution of your estate, who will raise your children, whether your beneficiaries will receive your assets outright or through a trust and who will serve as your personal representative to see that your wishes are carried out. Anyone who owns assets and certainly anyone with minor children should have a Will. Without one, a guardian will be appointed for your minor children and a judge will decide who will have custody of your children. If one parent survives the other this may not be an issue, however, if both parents die at the same time, this process can be time consuming, expensive and create a lot of tension in a family. For instance if both sets of grandparents are living, there could be a dispute as to who should raise the children. You and your spouse may have a brother or sister who you would prefer to raise your children. If those wishes are not set forth in a written will they will not be followed by a judge.

Further complications arise if the deceased person has children as a result of different marriages. If you want your children from a previous marriage to receive part of your estate, you would need to cover that bequest in your will. In addition, if you desire to gift certain property such as your grandmother’s wedding ring for example, that specific gift could be covered in your will. You can also make it clear in your will that certain assets are to be distributed to a favorite charity or relative. All of your specific wishes can be addressed in your will so that there is no confusion as to your wishes and you will then have appointed a personal representative selected by you to see that your wishes are carried out.

There are simple wills that are legally valid contained in the Wisconsin State Statutes in Sections 853.55 and 853.56. In fact, Chapter 853 contains a lot of information that would enable a person to create their own legally valid will. However, as with the Powers of Attorney referenced above, these wills are very simple and may not fit your individual circumstances. If that is the case, you should have a will and powers of attorney for both health care and finance and property drafted by the Zimmerman & Steber Legal Group or another qualified attorney who will customize your will and powers of attorney to meet your specific situation and address your desires.

I hope that you will seriously consider putting these important documents in place to make your wishes known to your loved ones when you are unable to speak for yourself.

 When creating a will, the following tax consequences need to be considered. Consultation with a tax expert is advised before creation of a will to get the most favorable tax treatment for your assets and heirs.

Federal –

1. Estate tax imposed on estates of $5 MIL or more ($10 MIL for a couple) in 2011 and 2012. The amount will change to $1 Million or more in 2013 unless Congress acts.

2. Inheritance tax if amount inherited is over $3.5 Million.

3. Gift Tax – 2010 and 2011 exclusion is $13,000 annually per person. You can give away $5 Million in your lifetime without having to pay a gift tax.

 State of WI –

1. Estate Tax – none in 2011 or 2012 unless the legislature acts.

2. Inheritance Tax – None if person died after 1/1/1992.

3. Gift Tax – None after 1991.

Next Posting, Trusts Part 4

Wisconsin Estate Planning Tips Part 2

Durable Power of Attorney for Finances and Property
by: Neil L. Wojtal

A Durable Power of Attorney for Finances and Property allows you to appoint an agent who will make financial decisions for you in the event you become incapacitated. If you do not have a Durable Power of Attorney for Finances and Property in place and you become incapacitated, your family may have to ask a court to appoint a guardian for you. This can be a time consuming and expensive process. Your family must hire an attorney who will arrange for a court hearing and a doctor would have to provide evidence that you are incapacitated.

Some people believe that they do not need a Durable Power of Attorney for Finances and Property if they do not own a large amount of assets. However, without one there are specific legal actions that cannot be accomplished without specific legal authority such as applying for work related disability or income continuation benefits such as Social Security; accessing or changing retirement plans; filing insurance claims or appealing denials; signing tax forms; selling a house or contracting for health care services.

This Power of Attorney can be effective immediately upon signing or it can be a “springing power”, i. e. effective only after a doctor declares you incapacitated. Even if you elect to have the Power of Attorney effective immediately, as long as you are competent, you will be able to handle your own affairs. Your agent will only be able to act if you are not able to do so. Once the Power of Attorney is activated, the agent’s authority does not end until you die. At that point, your Will takes effect and the personal representative named in your Will has the authority to act on your behalf to wrap up your affairs and distribute your assets pursuant to your wishes. Note that the agent under the Power of Attorney and the personal representative under your Will can be the same person. The statutory form for a Power of Attorney for Finances and Property is located in the Wisconsin State Statutes, Section 244.61. Note that an appendix must be attached to the POA which lists the definitions of the various powers as contained in Sections 244.44 through 244.56.

(Next posting  Part 3 -Wills)

WISCONSIN ESTATE PLANNING TIPS PART 1

ESTATE PLANNING

Part One – Durable Power of Attorney for Health Care

BY: Neil L. Wojtal

While you are living and healthy, you value being able to make your own decisions about your finances, property, health care, and raising your children. Should you die or become incapacitated, you hope others will handle these matters for you according to your wishes.

The only way to assure that will happen is through estate planning. There are three primary Estate Plan Documents that everyone should have in place.  The three primary Estate Plan Documents are: 1) a Durable Power of Attorney for Health Care - so someone can make health care decisions for you if you are not capable of doing so; 2) a Durable Power of Attorney for Finances and Property - so someone can make financial decisions for you if you are not capable of doing so; and 3) a Will directing the distribution of your Assets consistent with your desires and Estate Plan.

DURABLE POWER OF ATTORNEY FOR HEALTH CARE

A Durable Power of Attorney for Health Care (Durable POA for Health Care) authorizes another person to make health care decisions for you when you are unable to make such decisions for yourself. There is a state form contained in the Wisconsin State Statutes (Section 155.30) that you can use or you can have the power of attorney created for you by an attorney. Note that while the state form is legally acceptable it is a “one size fits all” form. It does not address any specific wishes you may have concerning your treatment in the event you are unable to communicate with your doctors. A Durable POA for Health Care can be effective immediately upon signing or it can become effective only after two physicians state in writing that you are incapable of making your own decisions. If you do not have a Durable POA for Health Care in place when you become incapacitated, no one will have the authority to speak for you concerning any decision regarding your continuing care. No one will be able to decide if extraordinary measures should be taken by your doctors to prolong your life if, for example, you are considered brain dead. Any such decision will then have to be made by a court after hearing testimony from your doctors. This is a time consuming and expensive process that will create stress for your loved ones since they are helpless to proceed without legal action since your specific wishes are not contained in a written document.

You only have to look at the Terri Schiavo case to see an example of a legal battle that lasted 7 years at great cost and family stress by all the involved parties. Ms. Schiavo was declared brain dead by her doctors and her husband, as her legal guardian, asked that her feeding tubes be disconnected allowing her to die. Ms. Schiavo’s parents insisted that she be kept alive in the hopes that she would someday recover some use of her brain and based upon her religious beliefs. The battle between her husband and her parents resulted in 14 appeals, and numerous motions, petitions and hearings in the Florida courts; five suits filed in federal district court; Florida legislation struck down by the Florida Supreme Court; a subpoena by a congressional committee to qualify Schiavo for witness protection; federal legislation and four denials of certiorari from the U. S. Supreme Court. While this case is an extreme example, all of this litigation could have been avoided had Ms. Schiavo completed a Durable POA for Health Care with specific instructions as to the use of extraordinary life saving efforts such as feeding tubes in the event her doctors declared her brain dead. A detailed Durable POA for Health Care will contain these instructions and appoint a person who has the power to carry out your wishes.

Note that a Durable POA for Health Care is not the same as a Living Will. A Living Will is a separate document, not a part of your Will. A Durable Power of Attorney for Health Care allows your agent to make health care decisions for you. A Living Will allows you to state in writing your preferences about life prolonging medical treatment. A Living Will only takes effect when you become incapacitated, cannot speak for yourself and there is no hope for recovery. A Durable POA for Health Care will cover the same scenarios as a Living Will but, if you elect to have it effective immediately upon signing, it will also cover any instances where you may be temporarily incapacitated such as a medically induced coma for instance. The standard form for the Living Will is located in the Wisconsin State Statutes in Section 154.03. Again, while this form is legally adequate, it does not provide your detailed instructions for various scenarios. A Durable POA for Health Care drafted by an experienced attorney will detail your wishes regarding several scenarios and give specific instructions as to what extraordinary measures you want to be taken by your doctors to prolong your life in the event of a life ending scenario or a temporary condition where you are unable to speak for yourself.

To Be Continued - Durable Power of Attorney for Finances and Property

Employment Law Tips Part 5

                    Zimmerman & Steber Legal Group, S. C.
                    By: Neil L. Wojtal

                    V.   OTHER ISSUES

A.  Classification of Employees as Independent Contractors: the Wisconsin Statutes, Sec. 102.07(8), requires an employer to meet all nine tests listed in the statute before the employer can classify an employee as an independent contractor. The tests are:

1. Maintain a separate business

2. Obtain a Federal Employer Identification number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service in the previous year.

3. Operate under specific contracts

4. Be responsible for operating expenses under the contracts

5. Be responsible for satisfactory performance of the work under the contracts

6. Be paid per contract, per job, by commission or by competitive bid

7. Be subject to profit or loss in performing the work under the contracts

8. Have recurring business liabilities and obligations

9. Be in a position to exceed or fail if business expenses exceed income

In the event an employer misclassifies an employee as an independent contractor, the employer can be subject to several issues such as tax liability, unemployment compensation issues and workers’ compensation issues to name a few.

Information on this issue can be found on the DWD website at:

http://dwd.wisconsin.gov/wc/employers/independent_contractors.htm

B.  Termination of Employment: Every employer should review their termination process, not only for compliance with federal and state laws such as discrimination, but also to prevent lawsuits arising out of the process. Foe example, no employee issue should be discussed publicly with an employee. Any employee who is subject to disciplinary action should be taken to a private room for the discussion. Any termination should be squarely based upon rule violations or business considerations. If an employer has a written disciplinary procedure, it must be followed uniformly for each employee. In addition, any disciplinary action taken by the employer must be documented in the employee’s personnel file. If an employee wishes to comment on the action, those comments should be kept in the employee’s personnel file as well. Any decision to terminate should have documentation in the employee’s personnel file that supports the business reasons for the termination. If an employer is unsure that the business reasons justify a termination, the employer should consult with an attorney prior to terminating the employee.

I hope that the information provided will be of help to all employers seeking to improve their employment processes.

The information contained in this document is intended for the sole purpose of providing general legal information and is not intended as legal advice of any kind.

This information may not apply to your specific issue, therefore, do not act upon this information without consulting Zimmerman & Steber Legal Group, SC or another qualified attorney.

Employment Law Tips Part 4

               Zimmerman & Steber Legal Group, S. C.
               By: Neil L. Wojtal

IV. EQUAL EMPLOYMENT OPPORTUNITY/FAIR

       EMPLOYMENT REGULATIONS

A.     Every employer should also review their hiring, firing and discipline

procedures to ensure that they are in compliance with the federal and state equal employment opportunity and fair employment laws. The Wisconsin Fair Employment Act (Sec. 111.31 – 111.395 of the Wisconsin Statutes) provides that it is unlawful for employers, employment agencies, labor unions and licensing agencies to discriminate against employees and job applicants because of any of the following:

age, ancestry, arrest record, color, conviction record, creed, disability, genetic testing, honesty testing, marital status, military service, national origin, pregnancy or childbirth, race, sex, sexual orientation, or use or nonuse of lawful products off of the employer’s premises during nonworking hours. Employees may not be harassed in the workplace, based on their inclusion in any of these protected categories. There is a 300 day time limit for filing a discrimination complaint.

In addition, an employer cannot retaliate against an employee for filing a complaint, for assisting with a complaint or for opposing discrimination in the workplace.

You can find an explanation of all of these protected categories on the DWD website at:

http://dwd.wisconsin.gov/er/discrimination_civil_rights/fair_employment_law.htm

Wisconsin also has several laws that protect employees from retaliation for reporting issues related to specific industries and working conditions. Such as labor standards, elder abuse, public employee health and safety, health care workers and toxic chemicals in the workplace. You can view these laws on the DWD website at:

http://dwd.wisconsin.gov/er/discrimination_civil_rights/retaliation_protection.htm

B.  Sexual Harassment: An employer must eliminate any workplace condition that could create a hostile environment or be considered sexual harassment under the state and federal EEO/Fair Employment laws. It is recommended that an employer create a formalized anti-harassment policy which includes an investigation procedure. You should also institute a periodic training procedure for all employees. You should look at your workplace to determine if anything within the workplace could be creating a hostile work environment such as obscene or pornographic materials in public view, inappropriate language use by employees and the general interaction between employees in the workplace. The DWD has a publication available which can help with this evaluation at:

http://dwd.wisconsin.gov/er/discrimination_civil_rights/publication_erd_7334_pweb1.htm

Part 5 to follow

Employment Law Tips Part 3

Zimmerman & Steber Legal Group, SC
By: Neil L. Wojtal

III.   LEAVE AND RETURN TO WORK OBLIGATIONS

One area that can be very costly for employers is violations under various laws that require an employer to provide leave to employees or return employees to work after a temporary absence.

A.     Workers’ Compensation Leave: There is no legal requirement that an employer hold a position open or create a new position for an employee once an injured employee is released by their doctor to return to work. However, if an employer has suitable employment available within the returning employee’s physical and mental limitations, the employer must offer the employment to the returning employee. If an employer, without reasonable cause, refuses to rehire the returning employee when suitable employment is available, the employer may be liable for compensation of wages lost during the period of refusal, up to one year of wages. Note that this is an uninsured obligation of the employer. The rehiring obligations are set forth in the Wisconsin state statutes, Section 102.35.

B.     Federal and Wisconsin Family and Medical Leave Acts: Generally, both Acts only apply to employers with more than 50 employees. Note that the Federal FMLA does not supersede the Wisconsin FMLA so employers that are covered by both Acts must comply with the provisions of each Act. The Wisconsin Department of Workforce Development has a publication entitled “Comparison of Federal and Wisconsin Family and Medical Leave Laws” which describes the differences and similarities between the two Acts. You can access the publication online at:

http://www.dwd.wisconsin.gov/er/family_and_medical_leave/publication_erd_9680_p.htm

One other leave law should be considered if an employer has any employees who are called up for military service. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) protects an employee’s job for a period of time when the employee is called up for active duty. The Department of Labor has a website that explains an employer’s obligations under USERRA at:

http://www.dol.gov/elaws/vets/userra/userra.asp

C.     Americans with Disability Act: The Americans with Disability Act (ADA) must also be considered when an employer is reviewing potential leave obligations.

While the ADA does not require an employer to accommodate an employee who must care for a disabled family member, the FMLA may require employer to take such steps. Some courts consider that leave, with the corresponding obligation to rehire the employee, is a “reasonable accommodation” under the ADA. Employers with more than 15 employees who are covered by the ADA must determine whether leave may be required under the ADA. The EEOC has a publication available online that explains the interaction of the Acts at:

http://www.eeoc.gov/policy/docs/fmlaada.html

D.     Short Term and Long Term Disability Policies: If you have your own policies for your employees you must review your policies to make sure that your policies conform to any requirements of the ADA, FMLA and the workers’ compensation laws.

Part 4 to follow

Employment Law Tips Part 2

Zimmerman & Steber Legal Group, SC

By: Neil L. Wojtal

Hiring Practices (cont.)

E.     I-9 Forms: Another form which is required to be completed at the time of hiring is the I-9 form issued by U.S. Citizenship and Immigration Services (USCIS). USCIS is part of the Department of Homeland Security. Given the emphasis on homeland security after the 09/11 attack, there can be serious penalties if an employer fails to maintain an I-9 form for each employee they hire. The latest I-9 forms can be found at:         

http://www.uscis.gov/files/form/i-9.pdf

Read the instructions carefully to make sure you are completing the form correctly.

Note that employers can sign up with the USCIS E-Verify Program. E-Verify is a voluntary internet based system that compares information from an employee's Form I-9 to data from the U. S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. For more information go to http://www.uscis.gov/portal/site/uscis and click on "E-Verify Homepage" in the right hand column.

F.     Personnel Files: How and where you store your employee files is also important. Proper record keeping for all employees is essential. Employers with more than 15 employees are subject to the Americans with Disabilities Act (ADA) which requires separate personnel files for each employee for the purpose of segregating medical information from non-medical information. The medical information files must be maintained in a safeguarded place and access to the files must be limited to those persons authorized under the ADA to obtain such medical information. More information on the ADA can be found at:

www.ada.gov/business.htm

You can also find an ADA Guide for Small Businesses at:

www.ada.gov/publicat.htm

G.     Recordkeeping Requirements: In addition to maintaining the forms described above, employers are required under state and federal law to maintain specific information about each employee they employ. These records are required to be kept for at least three years. The requirements are listed at on the Wisconsin Department of Workforce Development website along with other useful information for employers in ERD Publication-4906-PWEB. You can reach this information using the following:

http://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_4906_pweb.pdf

H.     Handbooks and Manuals: All employers who use any employee handbooks or manuals that set forth policy should include language in your handbooks or manuals that preserves the “at-will” status of their employees. If you include mandatory disciplinary and termination procedures in your handbooks or manuals you must follow those procedures for each employee making sure that all steps are followed. Deviations from written policies and procedures can lead to claims of discrimination from individual employees.

II.                COMPENSATION ISSUES

The next step is to review your compensation policies and procedures.

A.     Minimum Wage: The general minimum wage requirement, effective July 24, 2009, in $7.25 per hour. This wage rate applies to most employees although there are some exceptions. The Wisconsin minimum wage rates can be found at the DWD website at:

http://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_9247_p.pdf

B.     Exemptions and Overtime:  Compensation claims can arise when employees are misclassified as exempt from overtime when the employee’s duties and wage payment method clearly indicate that they are hourly employees subject to overtime. The rules for exempt/non-exempt classifications and overtime calculation requirements are found in the Wisconsin Administrative Code, DWD 274.04 and in the Fair Labor Standards Act regulations at 29 C. F. R. 541 et seq. There is a helpful publication available online from the DWD entitled “Wisconsin Hours of Work and Overtime Law” located on the DWD website at: http://dwd.wisconsin.gov/er/labor_standards_bureau/publication_erd_8298_pweb.htm

This publication also lists the timekeeping requirements in Wisconsin. All time that an employee works must be recorded.

       

Another useful publication is the “Fact Sheet on Payment of Salary” located at: http://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_13109_p.pdf

During your review of your wage payment policies, you should identify which employees are not paid overtime and you should review the rationale used to make this determination. Many employers erroneously consider the term “salaried employee” to be synonymous with “exempt employee”. This is not the case. The “Wisconsin Hours of Work and Overtime Law” publication cited above points out the criteria an employee must meet to be classified as exempt. You should review your payment policies and procedures to make sure that all federal and state overtime laws are being followed.

C.     Wage Deductions: You should review ERD Publication 4906, cited in I, G   

above, for the state rules concerning wage deductions. You can also find this information in the Wisconsin Statutes in Sec. 103.455. Generally, unless the employee agrees, you cannot deduct from the employee’s wages for defective or faulty workmanship, lost or stolen property or damage to property.

Part 3 to follow

The Valentine's Day Gift That Keeps On Giving

January 27, 2011    

Neil L. Wojtal
Zimmerman & Steber Legal Group, S. C.

With Valentine's Day right around the corner, many people think of the traditional gifts for their loved ones such as candy, flowers and jewelry. I would like to suggest a different kind of gift that your loved ones will appreciate much more than these traditional gifts. Why not create a Will, Power of Attorney for Health Care and Power of Attorney for Finance and Property?
When you think of gifts that will provide a lasting benefit to your loved ones, what better way to give them peace of mind than having your affairs in order and your wishes clearly spelled out in these important documents.

Your Will provides for the distribution of your property in the event of your death and gives clear instructions concerning your wishes. It will comfort your loved ones to know how you want them to handle your affairs when you are no longer there. In addition, you will save them the expense of a court process and the stress of having a judge make decisions that you could have made through your Will.

The Power of Attorney for Health Care gives specific instructions concerning your treatment in the event you are incapacitated and unable to give the care instructions yourself. It provides your loved ones with peace of mind knowing exactly how to handle your medical care when you are unable to speak for your self. This document can apply to a temporary incapacitation or one that is more permanent with little hope of recovery.

The Power of Attorney for Finance and Property provides instructions to your agent as to how to handle your financial affairs while you are incapacitated and unable to do so. Again, this document can be effective during temporary incapacitation or one that is more permanent with little hope of recovery.

You can still buy that box of candy, those flowers or special jewelry, but, in addition, why not provide lasting peace of mind for your loved ones by having these extremely important documents created. A Will, Power of Attorney for Health Care and Power of Attorney For Finance and Property are truly gifts that keep on giving since these documents not only give you peace of mind but also removes additional stress from your loved ones during a very trying time for them.

EMPLOYMENT LAW TIPS PART 1

                   PART 1                                                                                  01/19/2011

Zimmerman & Steber Legal Group, S. C.

 BY: Neil L. Wojtal

INTRODUCTION

This is Part 1 in a series of postings that are designed to help small businesses without human resource staff to perform a self audit of their entire personnel cycle from interviewing through termination. Since our firm practices in Wisconsin, the tips contained in these postings refer to Wisconsin law and all of the resource links cited are Wisconsin resources. Of course this is general information and should not be considered legal advice. No attorney -client relationship exists between our firm or anyone reading this blog posting.

    
I.                   HIRING PRACTICES

The first step in the audit process is the examination of your hiring practices.

A.     Required Posters: A good place to begin is by determining whether you are complying with the Wisconsin and federal posting requirements. Employers are required to display, in a conspicuous place where employees are most likely to view them (which may include multiple work-sites) an array of federal and state employment posters. The state and federal posters can be downloaded from the Wisconsin Department of Workforce Development website at http://www.dwd.state.wi.us/dwd/posters.htm.  The chart on the website explains which posters must be displayed depending on the size of your workforce and type of business.

B.     Job Applications/Interview Process: The next step is to review your job application and interview procedures to determine whether you are asking any questions that violate either state and/or federal law. Many employers use standardized job applications which are outdated and which contain questions now prohibited under state and federal law. For example, many applications still contain questions concerning past workers’ compensation claims, disabilities or handicaps. All employers should obtain a copy of the DWD pamphlet entitled “Fair Hiring and Avoiding Discriminatory Interview Questions”. This pamphlet is available in electronic form on the DWD website at: http://dwd.wisconsin.gov/dwd/publications/erd/pdf/erd_4825_pweb.pdf.

This pamphlet is the first in a series that covers many employment related laws. The individual pamphlets in the series are listed at the bottom of the web page and can all be downloaded to your computer.

Your investigation should also determine whether you are complying with the federal Americans with Disabilities Act (“ADA”) with respect to pre-employment physical examinations or questionnaires. A key point of the ADA is that pre-employment physical exams are not allowed unless a conditional job offer has been made and the exam is either given uniformly to all employees in the same job category or due to business necessity. The U. S. Equal Employment Opportunity Commission (“EEOC”) has helpful information on their website addressing pre-employment questions and medical examinations in addition to all forms of discriminatory conduct prohibited under federal law. The website can be found at: http://www.eeoc.gov/laws/practices/index.cfm.

C.     Fair Credit Reporting Act Compliance: Some employers may routinely obtain background reports on job applicants, including credit reports. If this information is obtained from a third party, an employer needs to be aware of the requirements contained in the federal Fair Credit Reporting Act (FCRA) administered by the Federal Trade Commission. The FCRA provides for specific procedures and forms that employers must use in obtaining credit reports about job applicants from third party sources. The FTC has resources available on their website that explains the requirements. Go to http://www.ftc.gov/, on the bar at the top highlight “Consumer Protection” and “Business Information” will appear below. Click on “Business Information” and you will be taken to the Bureau of Consumer Protection Business Center. Search “Using Consumer Reports” and you will see the explanation of the use of consumer reports in the hiring process.

D.     WT-4 Forms: There are a number of forms which employers must complete as part of the hiring process. Wisconsin employers are required to have employees complete the WT-4 form if the number of exemptions claimed for Wisconsin tax purposes are different from those claimed on the employee’s federal W-4 form. In addition, a Wisconsin employer must file the WT-4 form with the Department of Workforce Development. This form contains information that assists the state in the collection of unpaid child support. The WT-4 form can be found on-line at: http://www.revenue.wi.gov/forms/with/w-204f.pdf.

Part 2 of this series will appear in a future post.