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