The Hiring Process

I ran across this article on Linkedin. I thought I would pass it along. Our business clients should read the article and then think about their own hiring process. Does your hiring process cover the points raised in the article? If not, you may want to rethink your process.

http://www.linkedin.com/today/post/article/20121126061916-15454-thinking-backwards-will-help-you-improve-every-hiring-decision

Neil

Four Plans That Every Small Business Person Needs

By: Neil L. Wojtal

When a small business owner thinks about his/her business and planning for its future, the owner needs to consider planning not only for the business but for his/her needs as the owner.

Every small business owner should have four plans in place to cover all of these contingencies.

1.    Business Plan – Every business should have a five year plan that addresses the business’ needs for the next five years. This is often called a strategic plan. It enables a business to plan for growth by looking at staffing needs, capital equipment, vendor purchasing, space and location, competition and the business’ response to changes in its particular industry. Many books have been written about business plans and there are strategists available who can help formulate such a plan. Note that all large businesses have such plans.

2.    Contingency Plan – Most small businesses rely on a key person to run the business. This person is usually the owner. If this person is suddenly unavailable through illness or injury, what will happen to the business? How will the business continue to operate? In some instances family members are involved in the business but other times there is no involvement. The small business person must look at employee training and the company’s talent pool and evaluate it. If necessary, strategic hires might be required to make sure the company can continue to run without the owner. Another alternative for a sole proprietor is an agreement with a friendly competitor who is also a sole proprietor. If he/she is unable to work, you will service his/her clients until he/she can get back to work and vice versa. The agreement would include a section that covers the return of clients once the emergency was over.

3.    Exit Plan – Every small business should have a plan for the time when the owner decides he/she wants to leave. This could be for health reasons, personal lifestyle changes or simply to retire. The Exit Plan can include passing the company on to children, selling the company or offering the current employees a chance to take over the ownership of the company. There are many alternative Exit Plan strategies that can be explored. However, thinking about it and setting up a plan will take the uncertainty out of what happens to the company when the owner decides to leave and having a plan will provide peace of mind to the owner’s family.

4.    Estate Plan – This plan goes along with all the others. What happens to the company when the owner dies? How do you protect the equity you have built up in the company and pass it along to your to your family? This plan will allow you to preserve your investment while the other plans are put into action. You can appoint a personal representative that will help continue the business. That person can hire additional help to keep the business going until a decision is made concerning the future of the business. The plan can include a valuation model for the purpose of selling the business if that is necessary. In addition, if a son or daughter is involved in the business, a buyout can be worked out ahead of time to allow for the business to pass to the next generation. There are many alternatives that can and should be explored before the owner decides upon an estate plan.

 I suggest that all business owners explore the above 4 plans and make some decisions to allow for the smooth transition of the business in the event of an unplanned absence, for retirement and to plan for your family upon your death.

This blog is designed for general information purposes only and should not be construed to be formal legal advice. You should consult an attorney for advice regarding your own situation. Although great care has been taken to ensure the accuracy and utility of the information contained in this blog, no warranty is made, express or implied, and Zimmerman & Steber Legal Group, LLC assumes no liability in connection with any use or result from use of the information contained herein.

NLRB Focuses on "At Will" Disclaimers in Employer Documents

By Neil L. Wojtal

The NLRB, through several decisions and based upon remarks made by Acting General Counsel Lafe Solomon, will be focusing on at-will disclaimers noting that blanket at-will statements may violate the National Labor Relations Act.

The basis for the possible violation is that a statement signed by an employee which states that the at-will disclaimer cannot be changed under any circumstances has a chilling effect on labor organizing efforts because it leads the employee to believe that the employee's at-will status cannot be changed through collective bargaining.

I am attaching a link to an article which explains the reasoning behind the possible violation and which includes some steps which an employer can take to protect its at-will status. The best protective measure is to make sure your at-will language does not provide that the nature of the at-will relationship cannot be changed under any circumstances.

Here is the link:

http://www.ebglaw.com/showclientadvisory.aspx?Show=16386#page=1

This blog is designed for general information purposes only and should not be construed to be formal legal advice. You should consult an attorney for advice regarding your own situation. Although great care has been taken to ensure the accuracy and utility of the information contained in this blog, no warranty is made, express or implied, and Zimmerman & Steber Legal Group, LLC assumes no liability in connection with any use or result from use of the information contained herein.

EEOC Issues Enforcement Guidance for the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964

By: Neil L. Wojtal

On April 25, 2012, the EEOC issued new Guidance regarding hiring decisions made by employers based upon arrest and conviction records and how such decisions could violate Title VII.  Title VII protects persons from discrimination based upon race, color, religion, sex or national origin. The EEOC determined that national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. Therefore, the EEOC has determined that criminal record exclusion policies of an employer could lead to a Title VII disparate impact violation.

The two types of violations are:

1. A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin. This is known as disparate treatment liability.

2. An employer’s neutral policy (e. g. excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity. This is known as disparate impact liability.

What can an employer do to make sure that they are in compliance with this Guidance?

§  “Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

§  The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors); or

§  The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three factors identified by the court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity. (Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.).”

Note that compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII. In addition, state and local laws or regulations are preempted by Title VII if they “purport to require or permit the doing of any act which would be an unlawful employment practice” under Title VII U. S. C. Sec. 2000e-7.

How does an employer protect his/ her company from violating Title VII?

The EEOC advises employers to adopt the following best practices:

“VIII. Employer Best Practices

The following are examples of best practices for employers who are considering criminal record information when making employment decisions.

General

·         Eliminate policies or practices that exclude people from employment based on any criminal record.

·         Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.

Developing a Policy

·         Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.

   Identify essential job requirements and the actual circumstances under which the jobs are performed.

   Determine the specific offenses that may demonstrate unfitness for performing such jobs.

§  Identify the criminal offenses based on all available evidence.

   Determine the duration of exclusions for criminal conduct based on all available evidence.

§  Include an individualized assessment.

   Record the justification for the policy and procedures.

   Note and keep a record of consultations and research considered in crafting the policy and procedures.

·         Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.”

In light of this Guidance, all employers are encouraged to review their policies concerning criminal convictions when hiring new employees or determining the continued employment of current employees.

To view the entire Guidance, go to:

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

To view frequently asked questions, go to:

http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm

To view the Uniform Guidelines on Employee Selection Procedures, go to:

http://uniformguidelines.com/uniformguidelines.html

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, S. C. or another qualified attorney.

Why You Need a Will

By: Neil L. Wojtal

A person that belongs to one of my groups on Linkedin referenced this article.

It is a great explanation of why everyone over the age of 18 should have a will. I checked out the mystatewill.com site referenced in the article and it does give a thumbnail overview of what happens to your estate if you do not have a will in place when you die.

http://www.forbes.com/sites/deborahljacobs/2012/06/26/i-dont-have-an-estate-why-do-i-need-an-estate-plan/?goback=%2Egde_1701677_member_128155778

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, S. C. or another qualified attorney.

EEOC Granted Summary Judgment in Retaliation Suit

By: Neil L. Wojtal

The EEOC issued this press release after they obtained a summary judgment against an employer. Here is a link to the Release. Copy and paste this link into your browser.

http://www1.eeoc.gov/eeoc/newsroom/release/5-29-12.cfm?renderforprint=1

This employer asked several employees to sign Last Chance Agreements in order to continue their employment. Contained in the agreement was a provision that the employee must agree to give up all right to make any federal complaint of employment discrimination in return for his/her continued employment. The EEOC argued that this agreement was retaliatory when an employee revoked his signing of the agreement and was subsequently terminated.

The court agreed and granted the EEOC’s motion for summary judgment finding that a jury could come to no other conclusion then that the termination was retaliatory based upon the plain language in the agreement.

The lesson here is that an employer is taking a risk when they ask an employee to sign an agreement giving up future rights in return for continued employment. Before any employer has an employee sign this type of agreement, have the agreement reviewed by an attorney familiar with employment law issues.

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, S. C. or another qualified attorney.

Cohabitation and Common Law Marriage under Wisconsin State Law

By: Neil L. Wojtal

Recently a person (I will refer to her as Ann although that is not her real name) came to our firm with the following fact situation:

Ann had been living with her partner (I will call him Joe although that is not his real name) for many years. Joe was now living in a nursing home with questionable mental capacity to make his own decisions. His adult daughter from his marriage was named in a fully executed Power of Attorney for Health Care as his Agent. Therefore, the daughter was making all of the health care decisions for Joe and she was also making decisions concerning his property although it is unclear in what capacity.

The daughter told Ann that she needed to vacate Joe’s house since Ann was not named in the deed as an owner and she had no right to continue to live in the house. She was also told to remove all of her property from the house. Ann asked us what she could do.

The above fact situation is not uncommon. Given reported statistics that nearly one half of U. S. marriages end in divorce, many people are opting to cohabitate rather than getting officially married. As a result, it is important for anyone living in cohabitation in Wisconsin to understand their status as a cohabitant under Wisconsin state law.

1. First, common law marriage does not exist in Wisconsin. Common law marriage was abolished in the state of Wisconsin in 1917. Therefore, anyone cohabiting who thinks they have any rights under common law marriage is mistaken. No matter how long you may live with a person in Wisconsin, without a marriage certificate you have no rights concerning each other’s property.

2. Wisconsin is a community property state when it comes to division of property acquired during a legitimate marriage. The community property laws do not apply to any cohabiting couple. As a result, the cohabiting couple’s property can only be divided by contract. None of the divorce or family law provisions under the Wisconsin state laws would apply to the division of the cohabitants’ property. For example, if both cohabitants are not named on the deed to the home where they live, the person named on the deed has sole possession of all rights to the property. The cohabitant has no right to the home or to live there.

3. No survivorship benefits would be available to the surviving cohabitant in the event of the death of the other cohabitant. A spouse or ex-spouse may be entitled to the benefits but not a cohabitant. For example, the Social Security Administration only recognizes the survivorship rights of a spouse or ex-spouse.

4. Any children born during the cohabitation will have rights regarding paternity and support if the cohabitants acknowledge the child as theirs. However, the cohabitants do not have any rights related to the maintenance rules since the divorce laws do not apply to the dissolution of their relationship. If the couple has no children, maintenance of either cohabitant is not available under Wisconsin law.

Note that these examples are not exhaustive. There are many other rights that can be affected in the event the cohabitants are not legally married in Wisconsin.

Based upon the examples given above, it is important that anyone living in cohabitation protect themselves and their children through written documentation which recognizes the cohabitants’ interest in each other’s property.

This can be done through wills, trusts and Powers of Attorney for Health Care and Finance and Property. If a cohabitant has a will drafted before the cohabitation, the will must be reviewed and updated to reflect the current wishes of the cohabitant. For example, if children were born during the cohabitation, they need to be named in the will to receive an interest in the estate equal to any children born during a previous marriage if that is the cohabitant’s wish.

All Beneficiaries of insurance policies, any survivorship benefits related to pensions, all trust documents and all Powers of Attorney for Health Care and Property and Finance must be reviewed to determine if the cohabitant wants any changes based upon the cohabitation.

In summary, it is important to remember that in Wisconsin a cohabitant has no marital rights and therefore any provision for the surviving cohabitant after the other cohabitant’s death or incapacity must be memorialized in a legal document or the surviving cohabitant will have no legal rights under Wisconsin state law.

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, S. C. or another qualified attorney.

Significant Changes to Landlord-Tenant Law in Wisconsin Effective March 31, 2012

Major revisions were made to the Wisconsin Statutes, Chapter 704 regarding landlords and tenants.

Here are the highlights:

1. Section 704.05(5) – This section now states that the landlord may presume that property the tenant leaves behind is abandoned and the landlord may dispose of the property if the landlord has provided written notice to the tenant. The written notice can be included in the rental agreement or renewal and must state that the landlord will not store any personal property the tenant leaves behind. The landlord can dispose of the property regardless of whether it is owned by the tenant or someone else. The tenant or a secured party can redeem the property prior to disposal if they pay any landlord incurred expenses associated with the disposal of the property.

Two exceptions are medical items and manufactured homes, mobile homes and titled vehicles. With medical prescriptions and equipment, the landlord must hold the item for 7 days before disposal and the items must be returned to the tenant if requested in this 7 day period. Any manufactured home, mobile home or titled vehicle cannot be disposed of until the landlord has given written notice to the tenant and any secured party that the landlord has actual knowledge of, by regular or certified mail to the tenant’s last known address.

Note that a landlord must provide written notice in any new rental agreement or renewal if the landlord will not store abandoned property, with the exception of medical prescriptions and titled vehicles as referenced above. Therefore, you can add this provision to your new rental agreements or renewal agreements. For those tenants who are in the middle of a lease term, you can amend the rental agreement to include this language and have the tenant sign it. Of course, they could refuse. In that case, it should be included in the next renewal agreement. For month-to-month tenants without a written rental agreement, you should provide this change in a written notice effective 30 days after the notice.

If a landlord does not provide the notice, then the old statutory provisions requiring the storage of abandoned property will continue to apply.

2. Section 704.08 – This section requires the landlord to provide a check-in sheet to the tenant which the tenant must complete within 7 days of first occupancy. The check-in sheet must contain an itemized description of the condition of the premises at the time of check-in. This section would require the landlord to give a detailed description of the premises at the time of occupancy.

 It is our suggestion that you should take photos of the premises prior to tenant move in to have visual evidence of the condition of the premises prior to tenant occupancy.

This new statutory requirement applies to all tenancies beginning on or after March 31, 2012.

3. Section 704.02 – This section now states that if any provision in a rental agreement is found to be invalid, the rest of the agreement is still in force.

4. Section 704.44 – This new provision contains exceptions to Section 704.02. If any of these provisions are included in your rental agreement, the entire rental agreement will be void.

Here is the section:

704.44 Residential rental agreement that contains certain provisions is void. Notwithstanding s. 704.02, a residential rental agreement is void and unenforceable if it does any of the following:

704.44(1m)(1m) Allows a landlord to do any of the following because a tenant has contacted an entity for law enforcement services, health services, or safety services:

704.44(1m)(a)(a) Increase rent.

704.44(1m)(b)(b) Decrease services.

704.44(1m)(c)(c) Bring an action for possession of the premises.

704.44(1m)(d)(d) Refuse to renew a rental agreement.

704.44(1m(e) Threaten to take any action under pars. (a) to (d).

704.44(2m)(2m) Authorizes the eviction or exclusion of a tenant from the premises, other than by judicial eviction procedures as provided under ch. 799.

704.44(3m)(3m) Provides for an acceleration of rent payments in the event of tenant default or breach of obligations under the rental agreement, or otherwise waives the landlord's obligation to mitigate damages as provided in s. 704.29.

704.44(4m)(4m) Requires payment by the tenant of attorney fees or costs incurred by the landlord in any legal action or dispute arising under the rental agreement. This subsection does not prevent a landlord or tenant from recovering costs or attorney fees under a court order under ch. 799 or 814.

704.44(5m)(5m) Authorizes the landlord or an agent of the landlord to confess judgment against the tenant in any action arising under the rental agreement.

704.44(6)(6) States that the landlord is not liable for property damage or personal injury caused by negligent acts or omissions of the landlord. This subsection does not affect ordinary maintenance obligations of a tenant under s. 704.07 or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.

704.44(7)(7) Imposes liability on a tenant for any of the following:

704.44(7)(a)(a) Personal injury arising from causes clearly beyond the tenant's control.

704.44(7)(b)(b) Property damage caused by natural disasters or by persons other than the tenant or the tenant's guests or invitees. This paragraph does not affect ordinary maintenance obligations of a tenant under s. 704.07 or assumed by a tenant under a rental agreement or other written agreement between the landlord and the tenant.

704.44(8)(8) Waives any statutory or other legal obligation on the part of the landlord to deliver the premises in a fit or habitable condition or to maintain the premises during the tenant's tenancy.

704.44(9)(9) Allows the landlord to terminate the tenancy of a tenant if a crime is committed in or on the rental property, even if the tenant could not reasonably have prevented the crime.

If you have a provision in your rental agreement that contains any of the language referenced in Section 704.44 above, remove the provision immediately or your rental agreement will be void and unenforceable.

5. Section 704.28 – This section contains changes concerning security deposits. The most significant change is in Section 704.28(4) (b):

If a tenant vacates before the rental agreement termination date, the 21 days for the return of the security deposit begins on the termination date or on the date the landlord re-rents the premises, whichever comes first.

6. Section 704.07(2)(bm) – This new section states that before any earnest money or security deposit is paid, the landlord must disclose any uncorrected building or housing code violations to the tenant that present a significant threat to the tenant’s health or safety.

7. Section 704.95 – This new section states “Practices in violation of this chapter may also constitute unfair methods of competition or unfair trade practices under Section 100.20.”

This may mean that a practice that violates Section 704 may also be enforced under the trade practices statute. That could mean double damages and reasonable attorney’s fees for a party suffering a loss.

Note: It is unknown how the new statutes will be interpreted by the courts. Once there is some history of court case decisions under the new statutes, the interpretation of the various statutory provisions may change.

You can view the new statute Section 704 at:

http:/docs.legis.wisconsin.gov/statutes/statutes/704.pdf

This blog is designed for general information purposes only and should not be construed to be formal legal advice. You should consult an attorney for advice regarding your own situation. Although great care has been taken to ensure the accuracy and utility of the information contained in this blog, no warranty is made, express or implied, and Zimmerman & Steber Legal Group, LLC assumes no liability in connection with any use or result from use of the information contained herein.

New OSHA Rule on Hazardous Communication Standard

This article gives a good overview of what employers need to do under the new Rule and the deadlines that must be met.

http://www.mranet.org/MemberBenefits/Publications/InsideHR/ntk120328.aspx#A

Estate Planning and Safety Deposit Boxes

I ran across this article and I thought it would be benefit anyone who has, or is considering obtaining, a safety deposit box.

http://www.aaepa.com/blog/2012/03/counsel-clients-safe-deposit-boxes

Neil Wojtal

Internet Defamation

By: Neil L. Wojtal 

Here is a common scenario:

There is a website that encourages anyone to post reviews of your services/products. Someone posts a negative review anonymously basically saying that your service/product stinks. Sound familiar? You want the negative review removed because you believe it may scare off potential customers. You decide to file a defamation lawsuit. Is this a good idea? Maybe not. Here are some points to consider before you file that law suit.

Since the person posting the negative review is anonymous, you would have to name the person as “John Doe” in the law suit. The idea would be to use the law suit to subpoena the records of the website to obtain the name of the anonymous poster. However, this is easier said than done.

Unfortunately, the law is stacked against you. Most sites that are designed to encourage venting, will not remove statements made from their sites. This is true even if the statements are proven to be false (the basis of a defamation lawsuit). This is where the real world and the online world diverge. If the New York Times allowed a defamatory statement to be published in their paper, they can be held liable. This is because they function as editors of all opinion pieces. The same is not true for many of these websites. The sites are designed to encourage opinions. The site owners allow anyone to say anything. They do not edit the comments. Congress recognized this fact with the passage of the Communication Decency Act in 1996. The act held that internet service providers are not responsible for the materials posted as long as they don’t act as publishers/editors of the material. This immunity has been confirmed in the case law subsequent to the passage of the Act. The protection afforded these websites will prevent them from removing the material and getting the website to provide the information requested in your subpoena will be an uphill battle.

Even if you somehow succeed in getting the website to remove the review, the fact that you filed a law suit will create more on-line records. As a result, when your company name is searched, more hits will pop up, defeating the whole purpose of the law suit. In addition, potential customers may view the law suit filing as an over-the-top reaction. Why are you reacting so forcefully to one negative review? Do you have something to hide? This is especially true if you have a number of positive reviews that counteract the negative review.

What should I do to counteract the negative review?

When it comes to fighting negative reviews, your best defense is an SEO (search engine optimization). Working with an expert such as a reputation management firm, you can have positive published material about you move to higher ranking on search engines until the negative review page is moved to the second page and beyond. Most people performing a search rarely look past the first page. I know this may not seem like the answer a lawyer would give, but sometimes your best attack is to go head to head with the websites. Note that these services can be expensive. There are several available like www.removenegativelink.com, www.removeslander.com and www.reputationarmor.com.

 The other way to get a person to take down the negative review would be to offer a settlement. Of course, you would still need to identify the person to make this happen. In the event you do negotiate a settlement that requires the person to take down the negative review, you would need a written and binding settlement agreement to make sure the person will comply.

Remember, defamation is difficult to prove. The statements made must be proven to be false. Sometimes your best defense is a non-legal solution.