Employment Law Articles

by Ellen M. Frantz, Attorney, Johns, Flaherty & Collins, SC
(Wisconsin Employment Law — Americans with Disabilities Act)

Many employers today talk of difficulties finding and retaining skilled workers. Imagine how much worse it would be if the 50 million Americans currently living with some form of disability were removed from the work force.

Disabling injuries or illnesses can happen to anyone at any time. Whether a person collides with a tree while rollerblading, develops heart disease or falls from a ladder in a business warehouse, no one is immune. In fact, recent estimates suggest 70 percent of Americans will at some point have a temporary or permanent disability that makes stair climbing impossible.

With such dramatic numbers — and potentially dramatic impact to match — employers would be wise to learn now about the Americans with Disabilities Act (ADA) and prepare for what may very well be an eventuality in their workplaces.

Definitions

When a worker develops a disability, the first question for employees will be can they perform the job with reasonable accommodation; and the first question for employers will be can they accommodate the employee’s needs without undue hardship.

The ADA defines a reasonable accommodation as "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."

Undue hardship, on the other hand, is defined as significant difficulty or expense — focusing on the resources and circumstances of the particular employer in relation to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty but also to changes deemed unduly extensive, substantial or disruptive or that would fundamentally alter the nature or operation of the business.

The law is complicated because employers face many options for accommodating an employee. Possibilities run the gamut from altering hours or break schedules to purchasing specialized equipment. Employers may also face issues of access, such as fitting a wheelchair through a restroom door or a ramp or elevator in lieu of stairs.

State and federal law look at these cases differently. Generally, Wisconsin law is more sympathetic to employees, but both will look at cases on an individual basis to determine whether an employee can be accommodated reasonably.

Steps for Employers

With so many variables in play, employers can find it difficult to discern what courts may deem reasonable. The following steps can help:

According to the U.S. Department of Labor’s Office of Disability Employment Policy, almost half of the accommodations needed by employees and job applicants with disabilities cost nothing. Of the accommodations that do cost money, the typical expenditure is a one-time investment of around $600 — far less than hiring and training a new employee.

• Step 1: Develop job descriptions. Before disability issues arise, employers should develop a list of job functions for each position in the company. This preemptive move can help employers determine whether someone with a disability is able to perform a particular job.
• Step 2: Sort out which laws apply. If the employee acquired the disability while on the job, workers compensation law will play a role. If your company has more than 49 employees, the Family Medical Leave Act (FMLA) will be another factor to consider. These laws — workers compensation, FMLA and ADA — will interplay depending on the nature and cause of the disability.
• Step 3: Consider the possibilities. Don’t summarily dismiss considering what accommodations might work. Accommodation does not necessarily mean buying a six-figure piece of equipment; it may simply mean buying blocks to lift a table high enough so a wheelchair can roll up to it.
• Step 4: Proceed with tough decisions. Employers need to treat all employees — regardless of disabilities — the same when it comes to performance. If you have a worker who is not a good employee, it doesn’t matter whether he or she has a disability. Document the issues and discuss them, just as you would with any other employee. You may need to make a tough decision in dismissing an employee with a disability, and that’s OK so long as you follow the same path you would for any one else.

In a recent study from the Department of Labor, employers who accommodated workers with disabilities reported multiple benefits as a result, including increased productivity by the employee with the disability. Additionally, the Internal Revenue Service offers tax credits and deductions for businesses that accommodate workers (see www.irs.gov for more information). These gains over the long-term can easily offset the capital costs and temporary inconvenience of accommodating a valued team member.

Reprinted with permission from River Valley Business Report, Summer 2008.

I’ve been applying for jobs recently and a lot of employers want to conduct a background check. I’m curious what they will find. How can I conduct my own background check and what should I look for?

It is true that more employers conduct background checks today than in years past, according to attorney Joe Veenstra.

“A lot of employers do background checks now, especially in large corporations. They put a lot of money into hiring and training. They want to know the person is reliable,” he said.

Some do so to avoid future liability. A trucking business, for example, could be found negligent if it hired a driver with multiple citations for drunken driving and he or she later got into an accident with the company truck while intoxicated.

In some industries, such as childcare, home health care and others, the law requires background examinations. While ordinarily only adult criminal records are checked, juvenile records are opened for prospective childcare workers.

What can employers do with this information? “Employers cannot discriminate on the basis of conviction records unless the conviction substantially relates to that particular job,” Veenstra said.

Not hiring someone as a cashier who had recent convictions for bad checks likely would be reasonable. A conviction for battery on the other hand probably would not be related to a line position in a recycling plant and therefore a refusal to hire based on the conviction might be considered discriminatory.

Employers also may conduct credit checks on prospective staff members and they often look at social media like Facebook to see what they have posted.

“It is a good idea to perform your own background check before you send out your résumé to check to see if there are any problems or errors,” said Veenstra. “If you find problems, take the time to clean them up if you can.”

Where do you go?

• Check adult court records at http://wcca.wicourts.gov/index.xsl.
• Check the Federal Trade Commission for credit reports at http://ftc.gov/freereports.
• Check the Wisconsin Department of Justice, http://wi-recordcheck.org/; fees are charged. You do not have access to juvenile records.
• Review what you have posted on social media and remove embarrassing materials.

For more information on background checks and civil rights laws in Wisconsin, contact Joe Veenstra at 608-784-5678.

by Ellen M. Frantz, Attorney, Johns, Flaherty & Collins, SC
(Wisconsin Employment Law — Employee E-mail Policy)

The advent of the Internet and e-mail in the workplace has been both a boon and a boondoggle to employers in the United States. With an estimated 2.8 billion e-mail messages reaching American workers each day, it’s no wonder employers are increasingly finding productivity lost to personal Internet and e-mail use on the job.

Recent studies indicate that e-mail alone consumes up to a quarter of the average worker’s time on the job, and additional research has revealed that approximately 30-40 percent of the time employees spend on the Internet during work time is not business related.

If you’d like to contain cyber-slacking in your business, it’s wise to establish an e-mail policy for your employees. A thoughtfully developed, well-written policy can protect your business not only from lost productivity but also from some even more onerous problems such as sexual harassment/discrimination and the disclosure of proprietary information.

To develop an e-mail policy for your workplace, you must consider how you are going to define limitations, monitor personal use and enforce the rules.

At a minimum, employees need to understand that the employer owns the equipment and it is there for business purposes. Therefore, no employee should expect any of their computer activity to be private.

For companies that have their own in-house information technology experts, monitoring incoming and outgoing data can be easy, but many small businesses don’t have that luxury. In those cases, you may want to purchase software to do the job. The options range from programs that merely record times that employees pick up e-mail to programs that record the recipient, sender, number of words, time spent reading and composing e-mail, number of attachments and whether the e-mail is business- or non-business-related.

If you suspect that proprietary information is at risk or that offensive or explicit material may be passing through your computers, you may want to consider software that captures every key stroke from a computer. The software then sends you reports about the exact content, along with information about the parties involved and the amount of time spent on it.

Additionally, you may limit what can be deleted from the e-mail system and use software that automatically collects and backs up e-mails, even if an employee tries to delete them.

Enforcement. Once you have a system in place for monitoring e-mail use, you have the foundation for enforcing the policy. Be sure your policy also includes how the company will respond to infringement and what disciplinary measures may be imposed. Be specific, and include language about what happens with the first violation, second and so forth, up to termination.

Keep in mind there may be some instances where termination is appropriate for first offenses, such as disclosing proprietary information or sending objectionable material to a client or customer. Therefore, it would be wise also to provide that you may impose any penalty, up to and including termination, at your discretion.

Once you develop your policy, be sure to communicate it with employees the same way you would any other policy. It’s always a good idea to date the policy and have the employee acknowledge receipt. Oftentimes, simply knowing the policy exists is all it takes to eliminate the slacking.

Define limitations. It’s logical to assume that the same employees who don’t use the telephone for personal uses also will not abuse e-mail. Considering your employees’ needs and work habits, the nature of their work and the sort of supervision they receive, you should design a policy that fits your company. Some companies limit personal use altogether. Others allow employees to send and receive personal e-mails but only before and after work hours or during scheduled breaks.

Monitoring. Again, the way you monitor e-mail use should depend on your workplace environment. In some settings, supervisors are constantly walking the floors; in others, employees work more autonomously.
Reprinted with permission from the The Business News, May 2007.

Employers spend a lot of time, effort and money finding and training the right employees, especially for key positions. They don’t want to see their investment walk six months later for another position with another company.

For companies facing this dilemma they — and the employees they’re trying to attract — may find employment contracts worthwhile.

Employment contracts spell out the terms of employer-employee relationships. They are pretty rare, reserved mostly for highly compensated or specialized positions, and essentially describe what the employee is going to do for the employer and what the employer is going to do for the employee.

Without an employment contract, employees in Wisconsin are employed at will, meaning they can be terminated at any time for any reason, so long as the termination does not violate other laws such as those prohibiting discrimination. It also means employees can leave any time for any reason.

That’s one of many reasons employers (and employees, too) will want employment contracts. Such contracts will limit an employer’s right to fire the employee and the employee’s right to quit and set forth the duration of the job.

Employment contracts can also help entice highly skilled people to work for one business over another. A manufacturing business that needs someone with particular expertise with some new equipment or process, for example, can propose a contract for a specific term, outlining performance expectations and binding the employee to keep its business secrets safe — even if he or she goes to work for a competitor.

Employment contracts can describe how the parties will handle a number of issues, including:

• Salary and benefits — Compensation terms are included in most employment contracts, but the details vary greatly. Some employment agreements also include severance provisions.
• Protection of trade secrets and customer lists — Many contracts say very little about compensation and focus more on confidentiality. Employers risk huge losses if an employee leaves, taking strategic plans, client data and other proprietary information to the competition.
• Intellectual property rights — If the employee will be inventing products or developing new processes, employers likely will want to spell out ownership of any intellectual property developed during the term of employment.
• Competition — Contracts can, to an extent, delineate an employee’s ability to work for a competing business upon completion of the contract. Businesses need to be careful with non-compete clauses, however, because courts may reject the non-competition portion of the agreement if any of the non-compete terms are overly broad. While employers can bind employees to protect proprietary information forever, they cannot forever prohibit employees from working for competitors.
• Circumstances that could cancel the agreement — In addition to job performance, there are some other instances that would warrant terminating the agreement. Issues such as disability, company acquisition or natural disasters can all be worked into the terms of the agreement.
• Businesses should keep in mind that employment contracts work both ways. While they can give employers greater control, they can also limit a company’s flexibility. Unless it’s spelled out in the contract, industry or business changes cannot obviate an employer’s obligations. Once the contract is signed, both parties are bound to its terms.

Companies considering using employment contracts and individuals asked to sign them should both be sure to run the notion and document by someone who understands employment and contract law. Laws vary from state to state, so it’s important to consult an attorney who understands state-specific laws. A knowledgeable advisor can help both parties think through every provision and weigh the impact on themselves as well as their fellow contractor.

Reprinted with permission from River Valley Business Report, Winter 2009.

Once Facebook membership opened beyond college students, legal questions arose concerning how social media would be used in workplaces.

“It is as important as having Internet policies,” said attorney Ellen Frantz. “Employers need to decide if employees can use social media at work for either work or personal reasons and what the restrictions are on its use.”

Facebook, MySpace and Twitter can eat up a lot of time, a reason that businesses may forbid their use at work. But increasingly businesses use social media to share messages about the company.

“If social media is part of the marketing plan, then a decision has to be made about who will make updates and what can be posted,” Frantz said. That may be one set of policies.

Another set of policies applies to whether or not employees can access social media at work. Frantz strongly recommends business owners create a policy outlining whether or not such access is allowed, and if so, what the rules for use are. At a minimum, the policy should tell employees:

• If and when they can log on to these sites on company-owned equipment, such as before or after work or during their lunch hour.
• If they use company equipment, they must use their own name and not hide behind a screen name.
• To identify their opinions as their own and not representing the company.
• To be respectful and considerate to the business and co-workers.
• To comply with harassment and other company policies and all laws.
• To respect company confidentiality and trade secrets.
• To not use the company trademark and logos.
• To use good judgment because privacy is not possible on the Internet.

Even if employees only use Facebook on their own computers and on their own time, they should keep in mind that what they write about their workplace may lead to discipline at work.

“Employees don’t have free speech when it comes to bad mouthing an employer,” Frantz said. “It’s like standing on the corner and saying bad things about your boss. You can do that or you can write those things on a Facebook page, but there may be consequences at work as serious as termination.”

For more information on Wisconsin employment law or developing a social media policy for your workplace, contact Ellen Frantz at 608-784-5678.

Reprinted with permission from the River Valley Business Report, Fall 2005.

Lots of workplaces have their share of hostility, but that doesn’t necessarily mean they qualify as hostile work environments.

That person you beat out for a coveted promotion may have hostile feelings toward you. Or you may wish ill upon the coworker who constantly takes credit for others’ work. Subordinates may fundamentally disagree with the direction you’re taking the company. All can smack of workplace hostility. None indicate a hostile work environment.

To meet the legal definition of a hostile work environment — and thereby be actionable under discrimination laws — the behavior must have some basis in discrimination: race, age, gender, disability, religion, national origin, etc. In addition, there must be a pattern of abusive and degrading conduct that is sufficient to interfere with an employee’s work or create an offensive and hostile environment.

Generally, a few isolated offensive acts will not rise to the level of creating a hostile environment unless sufficiently severe.

If employees make lewd comments about co-workers of the opposite sex, mischievously move objects so as to trip a blind employee or forward racially charged jokes through the office e-mail, you have a hostile work environment.

Whether it’s garden variety hostility or a truly hostile environment, employers are wise to nip it at the outset — if not to avoid lawsuits, then at least to retain valued employees. Many companies over the years have lost valuable employees who weren’t necessarily the target of hostility but who did not like the culture.

Whatever the case, these steps can help you keep hostility out of your workplace vernacular:

• Listen. When you become aware of problems, listen to the person making the complaint. Whether or not the behavior violates the law is in the eye of the beholder, so be aware that sensitivity to offensive behaviors vary. Avoid any temptation to jump to conclusions. The more facts you have up front, the more thoroughly you can investigate to determine the extent of any problems (and your liability).
• Don’t ignore it. Investigate to see if a problem really does exist. While not everyone who reports a problem has a valid complaint, inaction will only perpetuate problems that do exist, along with perceptions that management just doesn’t care. If your investigation reveals the employee indeed faces a hostile work environment, you have some discretion about how to handle the issue. The key is to be sure you handle it.
• Terminate the problem, not the victim. Oftentimes, when an employee makes a complaint, employers will simply decide it’s time to get rid of the protesting employee or that it is easier to do so than to deal with the issue. That may seem the simplest solution — until the employee files a retaliation claim. Retaliation claims can follow even in cases where the workplace environment is otherwise fine, costing employers damages, back pay, attorneys fees and other costs that could have been avoided.
• Avoid hostility in the first place. It all begins with creating a culture of respect: between employee and employee, among coworkers, from employees to customers, and so on. Develop a written policy that prohibits harassment of any kind, communicate expectations to employees and train supervisors to recognize problems quickly when they do arise. As always, the best advice is to model the behavior you hope to see among employees; show the same respect for employees you hope to see from them.

Reprinted with permission from the River Valley Business Report, March 2010.

If you’ve ever conducted a job interview, you know firsthand how tempting it can be to ask as many questions as you can to get to know candidates both professionally and personally. It’s understandable that you may want to know about their family status, ties to the region or even their ethnic heritage. You not only want someone who can do the job; you also want someone who will fit your company’s culture.

But in getting at that information, many employers find themselves in hot water for asking questions they shouldn’t, questions that, in fact, are considered discriminatory by law. As a rule of thumb, it’s best to avoid asking any questions about candidates’ personal lives, such as age, nationality, family, political leanings, sexual orientation, health and physical abilities. Essentially, you need to avoid asking anything not directly related to the abilities and skills needed to perform the job.

Troublesome Questions

Here are ten troublesome questions to avoid — and alternatives to help you get the information you really need.

• Are you married? The question seems innocent enough, but employers who ask it could be accused of fishing to determine sexual orientation or to speculate about future pregnancies — again, pretty personal information that could be used to discriminate against a prospective employee.
• How do you feel about supervising the opposite gender? The interview should be focused on a candidate’s ability to handle the job, not whether the prospect is a man or a woman.
• Have you ever been arrested? The answer to this question is of no consequence; more importantly, it’s illegal to ask. What is relevant — and legal to ask — is whether the candidate has been convicted of a felony. Even then, if a candidate answers yes, that answer can only weigh in your hiring decision if it was for a crime that is relevant to your industry. That means you can’t refuse to hire someone as a bank teller for a DUI conviction 10 years ago but you can refuse for a fraud conviction.
• Do you have any disabilities? The Americans with Disabilities Act (ADA) firmly prohibits employers from asking this question of candidates. Instead, interview questions should focus on what qualifies someone for a job and the specific experience and skills that are relevant to job performance.
• How many days were you out sick in the past year? This question delves into health issues and potential illnesses. Even if a candidate does have some form of long-term illness, the ADA makes it illegal to ask. If you’re trying to get a feel for a candidate’s tendency toward absenteeism, you can ask how many days they were out last year. You just can’t ask how many of those days were due to illness.
• What does your spouse do? The answer has nothing to do with whether interviewees can perform the job. If they volunteer information about a spouse, it would be OK to follow up on it, but it’s best not to initiate any discussion about a spouse.
• How old are you? So long as a candidate has the skills and experience necessary to perform the job, age is irrelevant. If you are concerned whether a candidate is old enough to be legally employed, you can simply ask whether the applicant is age 18 or older.
• How long do you plan to work before you retire? Unless your employees work under contracts, they can quit any time for any reason, be it retirement, another job, whatever. Questions like this don’t get you any closer to identifying the right employee for the job. It’s best to focus on only the questions that will help you make a good hiring decision.
• Do you have religious holidays that you observe? Because most companies’ holidays are based on a Christian calendar, this is a growing issue for American employers with diverse workforces. But those religion questions are taboo. A more appropriate way to learn whether the work schedule is going to be a problem is to ask exactly that. Explain the hours, the company holidays and personal leave policies and ask candidates if they will be able to work the usual schedule of the business.
• Do you smoke or drink? Some employers may want to know whether they’re hiring someone who may need a number of breaks during the day. Still, you can’t ask. But you can ask whether a candidate has ever been disciplined in past positions for violating company policies concerning alcohol and/or tobacco use.

Golden Alternatives

If you really want to learn about a candidate, ask open-ended questions that allow them to elaborate and share on their own. Here are four excellent questions that will tell you volumes about a candidate and how he or she may perform, and fit into, your company.

• Of your previous work experiences, which position did you like the most and why? You can also ask this question in the reverse: Which position did you like the least and why? Answers to these questions could reveal how well candidates work with groups or on their own, job characteristics that are important to them and a host of other insights.
• Tell me about yourself. It’s not so much a question as it is an opportunity for candidates to share whatever they wish. They may ask if you want to know more about them personally or professionally. You can put it back on them by suggesting they share anything they would most like you to know about them.
• What is it about you that makes you especially qualified or knowledgeable in performing this job? This question give candidates an opportunity to share personal information about themselves that may be relevant to the job without you asking questions you shouldn’t be asking.
• If money weren’t an issue, what kind of work would you most like to do? Responses to this question will tell you about a prospective employee’s inner dreams and how those dreams may relate to the work they would be doing for your business.

The rules surrounding job interviews may seem cumbersome on the surface, but they exist to safeguard not just employees but also employers. Sticking to the rules — and the real purpose of the interview — helps you avoid far more cumbersome discrimination claims down the road.

I’m expecting a baby in a couple months and want to take 12 weeks off from work after my baby is born. My employer says I can only take six weeks since I’ve only been with the company a year. She says I’ll lose my job if I insist on taking off three months. Is that legal?

At issue is whether you are covered under the federal or Wisconsin Family and Medical Leave Act (“FMLA”), according to attorney Ellen Frantz. “Not everyone is covered.” If you are not covered, generally it is up to your employer to decide how long of a maternity leave to provide.

Both the state and federal laws apply only to employers with 50 or more workers. If your employer does not meet this threshold, the law does not apply to you. As an employee, you must have worked at least 1,250 hours in the preceding 12 months to be covered under the U.S. law, or at least 1,000 hours in the previous 52 consecutive weeks under Wisconsin’s law. If you have worked less than a year, you are not covered even if your employer is large enough.

Benefits are different, too, but if both federal and state FMLA apply to you, the employer must apply them in the way most beneficial to you, the employee.

Federal law provides up to 12 weeks of unpaid leave in a 12-month period for a birth, adoption, or to care for sick parents. If you are covered by federal FMLA and have not taken FMLA leave for any other purpose during the 12 months, you could use the entire 12 weeks for a leave after the birth of your child.

In a 12-month period under the Wisconsin law, you may take up to six weeks for the birth or adoption of a child, but only two weeks for a serious health condition for a parent, child or spouse, or up to two weeks for your own serious health condition. Again, the leave is unpaid.

Keep in mind that the maximum during the 12 month period is 12 weeks; you cannot stack or add the two leave provisions to increase the amount of time. Often the issue is whether the employee has the option of applying accrued paid time off such as vacations to the unpaid leave. If the leave is under the Wisconsin FMLA, that is the choice of the employee, but if the leave is under the federal law the employer can require the employee to apply any paid leave to the unpaid time off. That means that you can’t take the 12 weeks of unpaid leave and save two weeks of paid vacation to use later in the year.

“How these two FMLA laws work together may seem confusing,” Frantz said. “But the law has been around long enough that most employers know how to deal with it.”

For more information on employment law in Wisconsin, contact Ellen Frantz at 608-784-5678.

by Michael L. Stoker, Attorney, Johns, Flaherty & Collins, SC
(Wisconsin Employment Lawyer — Noncompete Agreements)

It's ironic that one of your business's greatest assets can also be one of its greatest threats. Key employees — those who have expertise and knowledge that is critical to your operations — can certainly help your business flourish. But when they leave your employ and take your strategic plans, financial information, trade secrets or customer lists to your competitor, they can significantly jeopardize your success.

That's why many companies consider noncompete agreements a form of business insurance: they provide some protection against the loss of highly confidential, strategic, operational, financial and other proprietary information, and they offer some legal recourse should a key employee leave to work for a competitor.

When deciding whether to use noncompete agreements, think about your goals. You must have a legitimate business reason for asking employees to sign these agreements. It's helpful to ask yourself how much such key employees could damage your business if they went to a competitor. Would they have strategic, operational, financial or other proprietary information to share? Could they take your customers, clients or trade secrets with them?

Be selective yet consistent when determining which employees should sign noncompete agreements, and remember they must be used uniformly among employee groups. If, for example, you own an advertising agency and ask an account executive to sign an agreement, be sure to ask all account executives to sign one. But it may not be necessary, or reasonable, to ask support or custodial staff to sign one.

If you want to use noncompete agreements, keep in mind that they must be supported by 'consideration' for the employees who sign them. Consideration means that there must be some financial or other benefit to employees for signing them. If the agreement is introduced at hiring, the benefit for the employee would be employment. If the agreement is being introduced to an existing employee, the benefit may be for a significant promotion or raise.

Noncompete agreements should include three key elements. First, they should place reasonable and clear restrictions on the employee. For example, a key salesperson should agree to return all company materials on termination, including not only customer lists, but also product and pricing information.

Second, they should include nondisclosure language, wherein employees agree not to share information learned from their employment with other employers. That's especially critical when trade secrets, trade practices and patents are essential to your business's success.

Finally, noncompete agreements should include restrictions on subsequent employment, including both narrow geographic and time limitations. A good rule of thumb is that noncompete agreements should be limited to a maximum of two years (depending on the facts of employment) and a 25-mile radius from the employee's primary place of employment.

This last point is where many agreements become unenforceable. Courts strongly disfavor noncompete agreements, and there are statutes that limit their nature and scope, saying they are enforceable only if they impose restrictions that are "reasonably necessary for the protection of the employer." In determining whether your agreement is enforceable, Wisconsin courts will want to see that the agreement allows the employee to continue working in his or her profession elsewhere. The object is to strike a balance between what's necessary to protect the business and the employee's right to work.

It's important to note that in Wisconsin if any portion of a noncompete agreement is not enforceable, then the entire agreement is unenforceable, even the portions deemed "reasonably necessary." So if your agreement establishes standards for termination and you terminate the employee in violation of the terms of the contract, you will be in breach and the entire agreement will be considered unenforceable.

The goal with noncompete agreements should be to protect your business, not to punish employees who leave it. If your agreement is reasonable and fair, you'll have a much easier time getting employees to agree to it as well as getting courts to enforce it.

Reprinted with permission from the The Business News, January 29, 2007.

My current employer has me working ten hours on some days, then requires me to take straight comp time instead of overtime pay (which is 1.5 times the usual rate). Is my employer violating the law in refusing overtime pay for my work beyond eight hours a day or 40 a week?

Wisconsin law allows employers an option to pay employees time-and-a-half for hours exceeding 40 per week or to compensate employees by altering a schedule, according to employment attorney Ellen Frantz. "If you work one hour of overtime on Monday, then your schedule may be altered to work only seven hours on Tuesday. When you are compensated with time, it’s on an hour-for-hour basis; the time-and-a-half provision does not apply."

Employers, however, must provide the compensatory time in the same pay period as the extra hours worked, added Frantz. If you are paid weekly, for example, that adjustment for time must be made in the same week as the extra hours worked. If you are paid every other week, the work hours could be adjusted over the two-week pay period.

For more information on employment law in Wisconsin, contact Ellen Frantz at 608-784-5678.

Employers always need to be aware of the potential for resume fraud, and as the job market tightens, experts warn of the need to be as vigilant as ever. As people become more desperate to land jobs with dozens, if not hundreds, of other applicants, they become more inclined to slant and pad resumes to appear more appealing for specific positions.

A number of studies have attempted to track the frequency of resume fraud. The results range from about one in ten of people self-reporting to one in four when measured by investigators. Even more shocking, four out of five Silicon Valley employees admit to having lied on their resumes.

With the cost of hiring and training, employers should carefully vet potential employees to make sure the people they’re hiring really have the background and qualifications they claim. Marquet International LTD., a firm that provides background checks and due diligence investigations, found the ten most common types of resume fraud include:

• Stretching dates of employment
• Inflating past accomplishments and skills
• Enhancing job titles and responsibilities
• Education exaggeration and fabricating degrees
• Unexplained gaps and periods of "self employment"
• Omitting past employment
• Faking credentials
• Fabricating reasons for leaving previous job
• Providing fraudulent references
• Misrepresenting military record

Recent studies indicate that 90 percent of all companies now perform background checks. If your company is among them, these tips can help:

1. Be sure to alert potential employees that you will be verifying information contained on their resumes and conducting a background check. Some employers further require resumes be attached to applications and include a statement indicating everything in the packet is true and accurate for applicants to sign.

2. If something on a resume or application screams that it’s too good to be true, start there for your background check. You can also prioritize by which claims are most important for the job description. If the position requires someone carry a special transportation license, be sure to confirm the applicant has the needed license they claim to have.

3. Don’t rely solely on past employment references. Former employers who provide references face serious liability when providing employment references, so you’ll need to carefully analyze any information they provide. In Wisconsin specifically, employers face charges of defamation, invasion of privacy, retaliation and negligent referral or breach of duty to warn. The combination of these potential claims discourages many former employers from providing candid references if they provide them at all.

4. Conduct background checks uniformly across all employee groups. For example, if an accounting firm decides to conduct a background check on one accountant, it must conduct background checks for all accountants. Conversely, if it decides not to conduct a background check for a secretary, it may not require a background check for any secretaries. To do otherwise would expose the company to discrimination claims.

5. If financial background checks are deemed necessary, say for a job as a controller or financial adviser, you must have advance, signed authorization from the applicant to use a credit reporting agency or other third party. In the authorization, you will need to guarantee the applicant certain rights, such as the opportunity to see the information you collect if denied employment.

6. Be careful with how you use the information you glean, especially with criminal background checks. Employers may deny employment to someone with a conviction record only if there is a substantial relationship between the crime and the person’s ability to perform the job. If, for example, you find an applicant has a drunken driving offense from a few years ago, you cannot let that influence a hiring decision for a position as a clerk. You may, however, let it influence a hiring decision for a bus driver.

Taking steps to protect your company from resume fraud is important for many reasons. Obviously, it helps you make better hiring decisions and avoid the legal liability that could come with hiring someone unqualified. But — as many Wall Street executives can attest — it also protects companies from public embarrassment and financial fallout when the truth finally comes out.

Reprinted with permission from The Business Report, June 2009.

Depending on your perspective, social media may be either the biggest productivity drain or the greatest promotional opportunity since the Internet found its way to the workplace a decade ago.

The pitfalls? Recent studies confirm that sites like Facebook and YouTube are responsible for stealing hundreds of hours from employers every year. Nucleus Research, a Boston-based IT research and consulting firm, for example, released a study this year that found companies that allow employees to access Facebook lose an average of 1.5 percent of total employee productivity during the workday.

Its power? Some companies use social media as a business promotion tool and additional studies indicate that the collaboration and knowledge-sharing benefits of social media may far outweigh the risks of lost productivity. PennEnergy and the Oil & Gas Research Center explored this issue and found that more than 40 percent of engineering professionals believed they could save at least one hour per day using information-sharing technologies, and the real obstacle was company management not seeing that potential.

Whatever the case in your company, history tells us burying your head in the sand and waiting for the fad to pass is not the solution. Consider the chalkboard. When first introduced in the 19th Century, naysayers predicted the new medium would not last. Over the next century, it morphed for many classrooms (and boardrooms, too) into dry erase boards. Today, our classrooms have “smart boards” on the walls displaying the contents of the computer screen for interactive use. That’s just the way it is with new media. Once a new application is introduced — be it a more user-friendly operating system, e-mail or, now, social media — society rarely digresses. The technology may change and mutate, but it doesn’t revert. Like it or not, social networking is here to stay, and smart employers will work now to control it for the good of the company.

• Identify the possibilities for your company. The first step is to realize social networking’s possibilities as they exist today. Many businesses are using social networking to recruit eager, talented workers; to promote new products and services; to connect with customers, thereby identifying unmet needs and potential new revenue sources; to exchange ideas and collaborate with other professionals in their industries.
• Consider the role of employees. Once you see how social media may best benefit your business, consider the corresponding role of your employees in achieving your social media objectives. Should your human resources person manage an active page on LinkedIn and have the ability to scan the site for potential talent? Should your marketing person tweet about new product development on Twitter? Should your customer service person administer a Facebook group for users of your products and services? Understanding how employees figure into your overall social media strategy will help you craft a policy to make the most of it.
• Develop a corresponding policy. This may be the most critical step for employers today, not just for protecting productivity but also for protecting their companies in general. One of the reasons many business owners are threatened by social media is because they fear employees may say something publicly that will harm the business — whether it be something defamatory about the company, derogatory about a supervisor, insensitive to customers or even spilling trade secrets.

A clear policy addressing these issues and a formalized system for dealing with problems can serve as a strong deterrent against these potentially harmful actions and protect the company in the event of a problem.

A good policy will cover a myriad of issues, including first and foremost that employees should have no expectation of privacy for their activities on company equipment during company time. It may address consequences for maligning the company, sexual harassment, penalties for spilling proprietary information, even decency clauses where they apply.

When it comes to social networking, business owners and managers report their greatest fear is that the tools will be abused and that the company will lose control of its own messages. The reality is that if people are already badmouthing your company, social media won’t change that fact; it will only open your eyes to it so you can deal with it. Further, if you trust your employees enough to talk with your customers, you should be able to trust them to use social media responsibly once they are trained. The key is to control, preempt and manage social media. A thorough, well communicated policy is the way.

Reprinted with permission from The Business Report.

My charge nurse at the hospital where I work sent me home because I had pink eye, a contagious infection. While out under a doctor's care, I was terminated for exhausting all my sick/annual leave. I had been sent home for obvious health and safety reasons and was under a doctor’s care. Is that legal?

Unless you have an employment contract of some kind, in Wisconsin you’re an employee ‘at will,’ meaning your employer can terminate you at any time for any reason.

Nevertheless, all employers have to comply with state and federal employment laws. For example, if you can prove your termination was based on a discriminatory factor (e.g., age, race, etc.), then your employer’s actions were not legal.

You’re more likely, however, to find recourse through the Family Medical Leave Act which requires employers to give employees additional time off for a serious health condition, either their own or that of a close family member. To qualify, you must have been employed for at least one year and have worked a certain number of hours in that year. If you’re new or part-time on the job, you may not qualify.

In Wisconsin, Family Medical Leave Act claims must be filed within 30 days of termination. If your employer did not post a flyer in the workplace explaining your rights under the Act, you may have 30 days from the time you learn about it elsewhere.

As you consider your options, try to remember — just as a court will — the employer’s point of view. Employers need workers they can count on to be at work and get their jobs done. That’s why attendance and time-off policies are created, and it’s why workers are hired in the first place.

For more information on employment law in Wisconsin, contact Ellen Frantz at 608-784-5678.

If you followed all your employer’s rules regarding work absences and your work-related injury qualifies under worker’s compensation, you may be able to file a claim under that umbrella, according to Johns, Flaherty & Collins employment law attorney Ellen Frantz. An administrative law judge would hear your case and if your employer indeed terminated you without reasonable cause, the employer would need to pay you an amount equal to a year’s wages.

Regarding pregnancy-related absences, larger employers — those with 50 or more employees — would be required to follow the Family Medical Leave Act and give people time off for medical problems related to pregnancy. Smaller companies are not required to do so. But all employers are subject to pregnancy discrimination laws, requiring them to treat pregnant employees the same as all others. That would mean you may have a discrimination claim if other employees also had excessive absences but did not get terminated.

Frantz notes you may also be eligible for unemployment compensation as long as there was no misconduct involved and you are physically able to work. Misconduct is generally defined as an intentional act on an employee’s part that violates the employer’s interest. Properly reported, legitimate absences do not qualify as misconduct.

For more information on employment law in Wisconsin, contact Ellen Frantz at 608-784-5678.

Depending on the specifics of your circumstances, you may have a claim under the Family and Medical Leave Act (FMLA), a disability discrimination case, a union grievance or an unemployment compensation claim, according to employment law attorney Ellen Frantz. The factors determining whether you have recourse and what that recourse may be are numerous and complex and would best be determined by consulting with an attorney experienced in employment law. These initial consultations frequently are free of charge.

Frantz said the most important step you can take is to act quickly. The window for filing a union grievance depends upon your union contract but may be as short as three days, and the window for FMLA claims may be as short as 30 days.

For more information on employment law in Wisconsin, contact Ellen Frantz at 608-784-5678.

In most cases, Wisconsin employers must pay in full employees who quit or are discharged no later than the date they would normally be paid if they were still employed, according to Ellen Frantz, a Johns, Flaherty & Collins attorney with a concentration in employment law. So if your usual pay day is the 1st of each month for work performed in the prior month, you should be paid in full by the first day of the month following your last day of work.

If you receive commissions, those also would need to be paid according to the usual commission schedule followed by your employer, said Frantz.

My supervisor chewed me out at work, but I didn't say anything to him at the time. When I walked away, I told one of my co-workers what I thought of him. He overheard me and fired me. Now they're trying to tell me I can't even get unemployment. Is that true?

Under unemployment law, you are eligible for benefits if you are laid off or fired - unless your employer fired you for "misconduct."

Your words, depending on what they were, how you used them and to whom, may fall into the category of misconduct, according to Ellen M. Frantz, an attorney with Johns, Flaherty & Collins whose practice includes business and employment law.

Misconduct is defined as an intentional act you know is against the interests of your employer. "If you were threatening or disrupted others, your actions may be considered misconduct," Frantz said, adding, "We are much more sensitive today about actions that appear to be threatening in the workplace."

While it is normal to be angry when chewed out by a supervisor, raising your voice or swearing may be enough to make you ineligible for unemployment benefits, especially if you have been warned about similar conduct, according to Frantz.

Whether you are an employee terminated for misconduct, or are an employer who has fired a worker for misconduct, records of the incident are important in winning an unemployment benefits case. An employer will be more likely to succeed if it has records showing the worker was talked to about the problem at an earlier time.

For more information on employment law in Wisconsin, contact Ellen Frantz at 608-784-5678.

Unions were developed to improve the balance of power between employers and employees and serve as a bargaining unit concerning wages, benefits and conditions of employment. They are part of the reason that many laws protecting the rights of workers were developed.

In today's economy and with the growing costs of health insurance as a benefit, many companies are not offering wage increases to employees like they did a decade ago, whether unionized or not.

That can be frustrating to employees in closed shops. There, nonsupervisory employees doing similar work or with certain job classifications must belong to the bargaining unit, according to attorney Ellen Frantz.

But unions can be decertified, or removed, from representing a group of employees, she said.

To eliminate the union — or to select a union — at least 30 percent of the employees in the bargaining unit must sign a petition asking for an election. After that petition is filed, the National Labor Relations Board reviews signatures to ensure eligibility and the election then may proceed.

Some employees still want a union, but a different bargaining unit than the one representing them. To change, they would need an election first to remove the existing bargaining unit and then to certify a new one.

An election to decertify or certify a union may be held once in a 12-month period.

"A decertification petition must be filed between 60 and 90 days before a collective bargaining agreement ends," Frantz said, "because an employer has the right to stability in the company."

For more information about employment law, contact Ellen Frantz at 608-784-5678.