Rules Requiring that Injured Employees Demonstrate 100% Recovery Before Being Allowed to Return to Work Likely Violate the ADA

Apr 30

Posted by Attorney David McClurg in Business Management, Employer-Employee Relationship, Human Resources | No Comments

In the past, some employers have required that an injured employee provide a doctor’s slip indicating that they could return to work “without restrictions” or that they were “100% healed” from the injury before the employee would be allowed to return to work. Although employees denied permission to return to work based on such rules sometimes pursued claims against their employers asserting that the employer improperly “regarded” them as disabled, such claims could generally be defended on the grounds that the employer did not perceive the employee as having an impairment that “substantially limited a major life activity,” only that the employee could not be counted on to do his/her particular job.

This defense is no longer available. Under the Americans With Disabilities Act Amendments Act (“ADAAA”), an employer can be held liable under a “perceived disability” theory if the individual can show discrimination because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to substantially limit a major life activity. Thus, a 30 pound lifting restriction that might not rise to the level of an actual disability might nonetheless be the basis of a perceived disability claim if, action because of that restriction, the employer refuses to allow the employee to return to a job that does not require lifting more than 30 pounds, or by assigning the employee to a lower paying office job.

In a case decided in December, 2011 involving the application of a “100% healed” rule applied to prohibit an employee from returning to work, the Seventh Circuit Court of Appeals indicated that “The risk of such a policy is even greater, if not absolute, now that the ADAAA has changed the definition of ‘regarded as’ disabled.”

This conclusion is also supported by provisions in the EEOC’s Final Regulations Implementing the ADAAA indicating that “The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.” Several pre-ADAAA cases held that “100% healed” policies constitute discrimination on the basis of perceived disability because such policies do not allow for “individualized assessment” of the employee’s ability to perform the functions of the job with or without reasonable accommodation.

In light of the changes contained in the ADAAA and the Final Regulations implementing those Amendments, employers that still enforce “100% healed” rules or require proof that injured employees can return to work “without restrictions” should re-evaluate those policies and consider implementing policies that allow for individualized assessments of an injured employee’s ability to return to work with or without reasonable accommodations.

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Now Employers Have to Worry About the Federal Trade Commission

Apr 23

Posted by Attorney Roger L. Pettit in Business Management, Labor Relations, Technology | No Comments

A few years back I prepared a handout for a seminar on effective employment practices.  In the handout I listed what I hoped would be a complete litany of laws that affect employers and employees in the work place.  The list of at least 27 different laws is reproduced below.

  • Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. 2000(e), et. seq.;
  • Civil Rights Act of 1991;
  • AmericansWith Disabilities Act of 1990, as amended, 29 U.S.C. § 12101, et. seq.;
  • Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et. seq., including 2008 amendments applicable to military Family Leave rights;
  • Fair Employment Act, as amended, Wis. Stat. § 111.321, et. seq.;
  • Age Discrimination In Employment Act of 1967, as amended, 29 U.S.C. § 1629, et. seq.;
  • Workers Compensation Act, Chap. 102, Wis.Stats.;
  • Unemployment Insurance, Chap. 108, Wis. Stats.;
  • Minimum Wage law, Chap. 104, Wis. Stats.;
  • Wage Payment Claims and Collections, Chap. 109, Wis. Stats.;
  • Sec. 425.110, Sec. 812.43, Wis. Stats. and 15 U.S.C. § 1671 – 1677 regulating termination of employees for garnishments;
  • Chap. 103, Stats., regulating, among other things, hours of work, overtime and employment relations, including Collective Bargaining;
  • Employee Open Records law; 103.13 Stats.;
  • Wisconsin’s Family and Medical Leave Act; 103.10 Stats.;
  • Laws regulating deductions from wages; 103.455 Stats.;
  • ConsumerCredit Protection Act, 15 U.S.C.(a), §1681-1681(v) – regulating investigations of employees;
  • Fair Labors Standard Act, 29 U.S.C.(a), § 201 – 219;
  • Employee Retirement Income Security Act (ERISA), § 29 U.S.C.(a).§§ 1001 – 1461;
  • Equal Pay Act, 29 U.S.C.(a), § 206(d);
  • Sarbanes-Oxley Act, 15 U.S.C., § 7201-66;
  • Labor Management Relations Act and National Labor Relations Act, 29 U.S.C.(a) §§ 141 – 187;
  • Immigration Reform and Control Act, 8 U.S.C.(a) § 1324 -1324(d);
  • As especially applies to care givers, HFS 12, 13 and 46 of the Administrative Rules of the Department of Health and Social Services (Chaps. 50 and 51; § 146.40; § 48.685, Wis. Stats.);
  • The Uniform Services Employment and Re-employment Rights Act of 1994 (as amended);
  • Wisconsin’s version of USERRA applicable to National Guard, Wis. Stats., § 21.80;
  • Wisconsin’s version of USERRA applicable to other branches of  the Armed Forces, Wis. Stats., § 21.79; and
  • The Lilly Ledbetter Fair Pay Act of 2009.

I hedged my bets by commenting that the “list is thorough but may not be complete based upon your particular situation”.  When I drafted that disclaimer it never occurred to me to add the Federal Trade Commission to the list.

Now that internet communication is so widespread however, the Federal Trade Commission (“FTC,”) has entered the discussion of employee speech.  The FTC’s revised guidelines focus on reviews of employers and their products.  The Agency has particularly targeted “flogs” which are fake blogs and “astroturfing” which is the posting of seemingly objective customer reviews that are bias.

The revised guidelines require disclosure of interest in reviews by employees, relatives and give away recipients.

No sooner has the National Labor Relations Act made it difficult to control employee speech when it concerns terms and conditions of employment,  now the FTC tells you that employees must self-identify if they have good things to say about your company.

A word to the wise – so long as you have to revise your social networking policies so that you do not prohibit employee speech regarding terms and conditions of employment, you  might as well establish policies that concern employee commentary (other than to co-employees) which positively reflects on the company that employs them or the products they produce.  Such a policy should include guidelines in when such commentary would be allowed, and the need for the employee to disclose his or her relationship to the employer or product.

It is probably a good idea not to incentivize employees for their online endorsements of the employer or the products and services provided, because you might have to disclose that as well.

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NLRB POSTING RULE AGAIN DELAYED

Apr 18

Posted by Attorney David McClurg in Business Management, Labor Relations | No Comments

We have yet another turn in the saga of the controversial NLRB Rule requiring employers to post a notice of employee rights under the National Labor Relations Act. After two previous delays in the implementation date motivated by requests from one of the federal courts considering challenges to the NLRB’s authority to require employers to post such notices, the Rule was set to become effective on April 30, 2012.

A few weeks ago a Federal District Court Judge in the District of Columbia held that the NLRB had the authority to impose the posting requirement, but invalidated two of the three sanctions that the NLRB would have relied on to incentivize employers to comply with the rule. The business groups that filed the lawsuit appealed the decision, but could not convince the Court to stay implementation of the “Posting Rule” pending the appeal.

On April 13, 2012 another federal court hearing similar challenges to rule in South Carolina held that the NLRB did not have authority to require Employers to post notices regarding employee rights under the NLRA. Given this split in decisions of the lower courts, and the NLRB’s indication that it will appeal this second decision, the D.C. Court of Appeals issued an emergency injunction on April 17, 2012 prohibiting the NLRB from implementing or enforcing the rule pending a decision on appeals. In light of this order, NLRB Chairman Pearce issued the following statement suspending the Posting Rule:

In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temporarily enjoined the NLRB’s rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.

In view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.

In March, the D.C. District Court found that the agency had the authority to issue the rule. The NLRB supports that decision, but plans to appeal a separate part that raised questions about enforcement mechanisms. The agency disagrees with and will appeal last week’s decision by the South Carolina District Court, which found the NLRB lacked authority to promulgate the rule.

We will continue to keep you informed of the fate of the NLRB Posting Rule, but for now, the posters do not need to go up.

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NLRB POSTING UPDATE – YOU MAY HAVE TO POST BUT THE CONSEQUENCES FOR NOT DOING SO ARE MINIMAL

Apr 2

Posted by Attorney Roger L. Pettit in Business Management, Labor Relations | No Comments

In previous blog posts we have discussed the National Labor Relations Board’s new posting rule (the Final Rule) which has been delayed several times.  The delays were, in part, because of lawsuits filed by various employer groups who challenged The Final Rule on several grounds.  The primary challenges included arguments that being required to post the NLRB’s notice violated the employer’s First Amendment Rights; that the Final Rule was arbitrary and capricious; that the Final Rule was invalid because of the recess appointments by President Obama of board members whose nominations had been blocked, and the NLRB lacked authority to legislate penalties against employers for failing to post the Notice.

On March 2, 2012, a trial judge in the United States District Court for the District of Columbia upheld the NLRB’s right to require the posting.  The court rejected the First Amendment challenge finding that other federal regulations also require the posting of Notices in the workplace.  The judge also found that the Final Rule was neither arbitrary nor capricious, pointing out that the NLRB had provided ample opportunity for public comments and notice of imposition of the Final Rule.

The judge declined to find that the Final Rule was invalid due to the questionable legitimacy of the recess appointment of three Board members, finding that the Agency had in fact enacted the Final Rule when the Board had a sufficient quorum before the recess appointments occurred.

Most importantly to employers however, was the court’s decision with respect to the penalties for non-compliance.  The court struck down the provision in the Final Rule that failure to post the Notice would automatically constitute an unfair labor practice.  Additionally, the court struck down the tolling of the 6 months Statute of Limitations which is applicable to other unfair labor practice charges, for not posting the Notice.

The court’s ruling did not completely strip the Final Rule of consequences for employers who fail to post the Notice.  The court held that willful, non-compliance of the posting rule could be used as evidence of illegal anti-Union animus and may support an unfair labor practice charge depending on the facts of each individual case.

The Final Rule becomes effective April 30, 2012; however, some of the plaintiffs have filed an appeal.  The trial court denied a Motion to Stay Enforcement of the Final Rule pending the appeal.  The Court of Appeals has not received a similar motion to stay nor acted on it as of the date of this writing.

 

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LEGAL CHALLENGES TO NLRB POSTER RESULTS IN FURTHER DELAYS

Jan 12

Posted by Attorney Lindsey R. King in Business Management, Employer-Employee Relationship, Labor Relations | No Comments

The NLRB has once again delayed the date that its somewhat controversial poster, required by the NLRB to be posted in all workplaces, must be posted.  As noted in prior blog posts, the poster was originally to be posted on or before November 14, 2011.  Legal challenges to the rule requiring the poster were filed, and as such the NLRB delayed its posting date to January 31, 2012.

Further legal challenges to the poster, and the time the NLRB needs to address these challenges are cited as the reasons for now changing the required posting implementation date to April 30, 2012.  No changes to the content of the required posting will result from this delay.  The criticism against the poster was almost instantly, with employers complaining that the NLRB is overreaching its authority and placing unnecessary additional burdens on employers.  Other criticism arose because almost all employers are required to post this poster, even if their workforce is not unionized, because the poster informs these employees of their rights to unionize.  In a prior blog post, some of the deficiencies to the poster, in that author’s opinion, were identified.

In other NLRB news, this week three individuals were sworn in to the NLRB by President Obama to fill vacancies on the Board, giving the NLRB a full five member panel for the first time since August of 2010.  These appointments were immediately criticized by many, in part because of the way these appointments were made.  Prior efforts to appoint individuals to these vacancies were denied because the Senate would not vote to approve Mr. Obama’s nominations.  During a brief congressional recess Mr. Obama exercised his authority to issue recess-appointments, filling the NLRB vacancies.  Such an action was necessary to keep the NLRB up and running as the NLRB lost its third member on January 3, 2012, and the NLRB requires a minimum of a three person quorum to take essentially any action.

 

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Ten New Year’s Resolutions for Human Resource Professionals

Jan 9

Posted by Attorney David McClurg in Business Management, Employer-Employee Relationship, Human Resources, Labor Relations | No Comments

1)         I will focus on improved documentation to support employment decisions.

 

2)         I will routinely engage employees with physical or mental impairment in an interactive process to evaluate potential accommodations.

 

3)         I will ask job applicants about potential accommodations (but never about the existence or nature of any disability) ONLY if:

a) I reasonably believe the candidate has a need for accommodation because of an obvious disability;

b) I reasonably believe the candidate may need accommodation based on a disability the candidate has voluntarily disclosed to me; or

c) the candidate asks for accommodation. I will ask candidates to demonstrate or explain how they would perform the essential functions of the position only if I ask this of all candidates for the position;

 

4)         I will be prepared to post the new “Employee Rights under the National Labor Relations Act” poster on or before April 30, 2012 (the most recently announced implementation date after a second delay by the NLRB based on a request from the Federal Court hearing a legal challenge to the NLRB Rule requiring this posting.)
5)         I will carefully evaluate potential misclassification of employees as independent contractors under the varying tests applied for purposes of payroll tax withholding, payment of minimum wage and overtime, and worker’s compensation and unemployment insurance coverage.

6)         I will eliminate “off the clock” work and “comp time” practices that can lead to wage and hour claims.

 

7)         I will help my company’s managers avoid retaliatory decisions based on an employee’s exercise of protected rights, including both union and non-union employees’ right to engage in concerted protected activity”.

8)         I will inform only those managers with a “need to know” about an employee’s complaints, requests for leave or participation in other protected activities in order to avoid claims that decisions by others outside this group were made in retaliation for the protected conduct.

9)         I will avoid online reference checks that may provide decision makers with information regarding applicant’s protected status which could subsequently support discrimination claims by rejected candidates.

10)       I will comply with “compensable time” rules, including:

a)         Time clock rounding – policy must be balanced and not result in routine underpayment of wages;

b)         Time for training and seminars must be paid unless:

 

  • Attendance is outside regular work hours;
  • Attendance is voluntary:
  • The substance of training is not directly related to the employee’s job; and
  • The employee does not perform productive work during participation in the program.

c)         Meal breaks of 30 minutes or more can be uncompensated only if the employee is completely relieved from duty. Note: if the employees take three 10 minute breaks instead of one 30 minute break, the break time must be compensated.

d)         “On call” time is compensable unless the employee can use the time effectively for his or her own purposes; and

e)         Unauthorized overtime in violation of company rules may subject the employee to disciplinary action, but does not allow the employer to withhold payments for the hours worked.

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THE FORBIDDEN PHRASES DON’T WORK

Dec 30

Posted by Attorney Roger L. Pettit in Business Management, Employer-Employee Relationship, Human Resources | No Comments

In my last post I explained that using the forbidden phrases when terminating employees can foster lawsuits.  Those phrases will never satisfy an opposing counsel or a fact finder in a lawsuit brought by disgruntled employees.  The following fictionalized cross examinations illustrate why employers may wish they had been more forthright in the first place:

 

Question: “Did you give Mr. Smith a reason for his termination?”
Answer: “Yes.  I told him the company was going in a different direction.”
Question: “Which direction were you planning to go? North? South?  East? West?  Up?
Down?  Frontwards?  Or backwards?”
Answer: “No, that’s not what I meant.  I just meant that the company was going to make a change.”
Question: “Were you going to change product design?
Were you going to change manufacturing techniques?  Were you going to change locations?”
Answer: “No, no, no, no, we were going to change the employee.”
Question: “I see, you were going to change Mr. Smith for another employee.  Now that that is cleared up, please tell the court why you decided to terminate Mr. Smith, and if the reason is a legitimate one, why you didn’t tell Mr. Smith at the time of his termination?”

____________________________________________________________________

Question: “Did you tell Mr. Smith why you were terminating his employment?”
Answer: “Well, I told him I was letting him go at-will.”
Question: “What does that mean?”
Answer: “Well, Mr. Smith was an employee at-will so I could let him go.”
Question: “Is that why you let Mr. Smith go, simply because you could?”
Answer: “No, I had a reason.”
Question: “If your reason was legitimate you would have told him when you sent him to the
unemployment line, wouldn’t you?”

____________________________________________________________________

Question: “When you terminated Mr. Smith did you give him a reason?”
Answer: “No.”
Question: “Why not?”
Answer: “Because I was told that I don’t have to have a reason to terminate an employee.”
Question: “In fact, isn’t it true that when you terminated Mr. Smith you told him that you didn’t
have to give him a reason?”
Answer: “Yes, I did.”
Question: “So you terminated Mr. Smith for no reason?”
Answer: “No, I have a reason.”
Question: “If your reason was legitimate you certainly would have told Mr. Smith at the
time of his termination.  Correct?”

__________________________________________________________________

Question: “Now, Mr. Smith tells me that on the day that you terminated his employment you
told him that he was not a good fit. Is that correct?”
Answer: “Yes.”
Question: “What did you mean by that?”
Answer: “Well, he was always late.”
Question: “Do you have other employees that you have not terminated who are late?”
Answer: “Yes.”
Question: “Are they bad fits as well?”
Answer: “No.  Their lateness wasn’t as often as Mr. Smith’s.”
Question: “Do you tolerate a certain level of poorly fitting employees?”
Answer: “No, that’s not what I meant.”
Question: “Is Mr. Smith not a good fit in some other manner?”
Answer: “Well, he really didn’t get along with his co-workers.”
Question: “Do you allow your co-workers to determine hirings and firings?”
Answer: “Of course not.”
Question: “Was there any other way in which Mr. Smith failed to fit?”
Answer: “Well, if you must know, he was the least productive member of his team and it required the other team members to do extra work in order to get our projects completed on time.”
Question: “If that was the real reason, you certainly would have told him that at the time he was
terminated.  Correct?”

__________________________________________________________________________

Answer: “I told Mr. Smith when we let him go that it just wasn’t working out.”
Question: “What wasn’t working out?”
Answer: “Mr. Smith’s employment.”
Question: “Was he on time to work every day?”
Answer: “Yes.”
Question: “Did he miss any days from work?”
Answer: “No.  He was always at work.”
Question: “Was he respectful of his co-workers?”
Answer: “I never heard any complaints.”
Question: “Was he respectful of authority?”
Answer: “Yes.”
Question: “Did Mr. Smith violate any rules or company regulations?”
Answer: “Not that I can think of.”
Question: “Isn’t it true that of all of the employees in your company from time to time you
would run across individuals who would sometimes be late?”
Answer: “Oh yes.”
Question: “Sometimes be absent for no excusable reason?”
Answer: “Yes.  Unfortunately we have some of those once and awhile.”
Question: “Do you sometimes have to counsel employees for violating one rule or another?”
Answer: “Oh yes, that’s all part of the daily life of a HR Director.”
Question: “Have many of those employees been employed for a good length of time?”
Answer: “Oh, yes.  A lot of our employees have been around for more than 5 years.”
Question: “And even those employees from time to time had attendance problems, and committed
other work rule infractions and are still employed.  Those employees are ‘working out.’ Correct?”
Answer: “Well, I suppose so if you put it that way.”
Question: “Well then you must have made a mistake when you fired Mr. Smith because as you have so helpfully explained, employees with a record such as Mr. Smith are
‘working out’ as employees of the company. Correct?”
Answer: “No, no, you don’t understand.  Mr. Smith’s quantity and quality of work was less than his co-workers on his team and it required his team members to put in extra time and effort to get projects done in a timely manner.  In fact, when he did submit a report on behalf of the team, it was poorly written, there were several misspellings and grammatical errors, and the report showed his lack of understanding of the significance of the project.”
Question: “Well, if that was the real reason you certainly would have explained that to him at
his exit interview.  Correct?”

_____________________________________________________________________

At trial the employer wants the evidence to focus on facts that support the stated reason for terminating the employee. Trial is not the time to articulate for the first time an employment related reason.

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THE FORBIDDEN PHRASES: How to increase the chance of litigation over an employee’s termination.

Dec 15

Posted by Attorney Roger L. Pettit in Business Management, Employer-Employee Relationship, Human Resources | No Comments

Unless the employee is covered under a Collective Bargaining Agreement or a contract for a definite term, most states, including Wisconsin, consider the employment relationship to be at-will, i.e. an employer may terminate an employee without a defined level of “cause”.  While many factors may contribute to the decision to terminate an employee, being honest and forthright in the termination process is an important consideration.

No employee is ever terminated without a reason.  There is always a reason and unless it is an unlawful reason there is no purpose to be gained by not being forthright with the employee.  When discussing the termination process with employers, I have heard them suggest that the employee be given an explanation that really has nothing to do with the purpose for the termination. I will call them the “forbidden phrases”.  Using these phrases to explain to the employee why he or she is being discharged can foster as opposed to avoid employment litigation.  Here they are:

“We are going to go in a different direction.” This comment is very popular today, but it tells the employee nothing about why he or she is being terminated.  It raises more questions than it answers such as “why can’t you change directions and still keep me?”  “Does this mean you are going to stop cutting hair and begin manufacturing airplanes?”  But more importantly it tells the employee that there is a “real” reason that the employer is choosing not to disclose.

“I am letting you go at will.” This is a favorite phrase of employers who are unaccustomed to removing undesirable employees.  They have likely been told that an at-will employee may be terminated for any reason or no reason at all.  A close relative is the phrase “We are terminating your employment and I don’t have to give you a reason.” Both of these statements regarding at-will employment may be true but the affected employee couldn’t care less.  The employee knows there is a reason behind the termination and the use of these statements instead of the real reason will convince the employee that the employer is hiding something.

The following phrases are often used by employers when an employee has not been able to successfully become part of the culture of the workplace or it has been decided that the employee does not work well in a team setting.  Instead of using the performance issue as a basis for the termination, employers will often prefer to say “you are not a good fit” or the more unhelpful quote “it just isn’t working out.” Since more employees than not are or have been at some point in their work lives, members of a protected class, being terminated with the statement that “you are not a good fit” or “it isn’t working out” is often perceived by the employee as a cover to mask a discriminatory reason for the termination.

In a recent decision, the 7th Circuit Court of Appeals sent a case back to the lower court for trial, to require the employer to explain why its decision to “eliminate her position”, and the reason given to Human Resources that the employee “doesn’t fit into our culture”, didn’t really mean the employer disliked pregnant employees. (Makowski v. SmithAmundson, LLC, No. 10-3330, 7th Circuit, November 9, 2011).

 

Employers should keep these points in mind when deciding to terminate an employee:

 

1.         Employers don’t fire employees without a reason.  Setting aside unlawful terminations, the employer from its perspective always has a legitimate reason to terminate an employee.  Even though it is rare that an employee will agree with the employer’s analysis, that factor should not motivate the employer to mask the real reason with the use of one of the forbidden phrases.

2.         Telling an employee the truth just might avoid a lawsuit.

3.         When an employer articulates the reason for termination it is reassurance that the decision to terminate was the correct one.

4.         Being able to justify the reason for an employment termination is the essence of a successful defense to a lawsuit.  It is important for employers to remember that in the employment at-will setting the only reason that does not justify an employee termination is a reason that is unlawful.

In my next blog I will demonstrate how problematic it is for employers to articulate a defense when an employee is terminated using the forbidden phrases.

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Concealed Carry – What’s Your Policy?

Dec 8

Posted by Attorney David McClurg in Business Management, Employer-Employee Relationship, Uncategorized | No Comments

Wisconsin’s Concealed Carry Law took effect on November 1, 2011, and the Department of Justice was immediately inundated with applications for concealed carry (“CC”) licenses. While employers have the right to ban weapons in their facilities, in company owned vehicles and at their remote work locations, they cannot prohibit CC license holders from storing handguns in their own vehicles in the employer’s parking lot. Employers can, however, impose reasonable restrictions on the method of storage of handguns in vehicles on their property – such as requiring that the handguns be stored out of sight in a locked vehicle. Employers wishing to ban weapons inside their facilities must post appropriate conspicuous signage at all entryways.

Many employers have chosen to “post” their facilities based on concerns that weapons in the workplace may lead to injuries. Others have decided not to post based on a variety of considerations, including a belief that this will dissuade criminals from using firearms on their premises, and reduce their liability exposure given the “immunity” provisions in the CC Law. It is unclear at this point how broad the “immunity” provided under the CC law will be, since it extends only to the decision not to prohibit concealed weapons on the premises, and may not cover liability for claims such as negligent hiring and negligent supervision of employees.

Similarly, it is unclear whether the decision to post will create any new liability exposure for those employers that take that route. In the past, Wisconsin Courts have not imposed liability on employers when third parties have come onto their premises and intentionally injured individuals on the premises with firearms that they brought with them. While some have suggested that Employers who post take on a broader duty to protect their visitors, we have found no cases imposing such a heightened duty.

An additional issue that may impact employers’ decisions on whether to post their premises has received relatively little attention. The CC Law significantly expanded the right to openly carry loaded handguns in Wisconsin. This is sometimes referred to as “constitutional carry” because the Wisconsin State Constitution includes a provision giving residents the right to bear arms for defense, hunting and certain other purposes without a license.

The Concealed Carry Law expanded “open carry” rights in two significant ways. First, residents can now openly carry loaded handguns in their cars, boats, airplanes and ATVs. It is also legal to load a handgun in those vehicles. Previously all firearms in vehicles needed to be cased and unloaded except for certain excluded individuals such as peace officers. Second, local law enforcement officers are now prohibited from issuing citations for disturbing the peace to individuals who are openly carrying a handgun unless the individual is exhibiting malicious intent or threatening behavior.

Since no special license is required to openly carry a handgun, and loaded handguns can now be openly carried in vehicles, it is likely that the prevalence of “open carry” will significantly increase in Wisconsin. This may create problems for employers who do not post “No Firearms” signs, as there will be nothing to prohibit open carry in their facilities, and it may make their employees and visitors nervous to see a handgun on another person’s hip.

Whether an employer decides to post or not, it should carefully review its policies on workplace violence, and determine how it will respond to individuals appearing in the workplace with handguns. For those employers that post and do not wish to assign an employee the task of asking an armed visitor to leave the premises, an alternative may be a policy directing that the police be contacted, since carrying a firearm on properly posted property constitutes criminal trespass. For employers worried about potential liability exposure, the best policy may be a special insurance policy providing liability coverage for violence in the workplace.

 

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NLRB Pushes Ahead on “Quickie Election” Rule

Nov 23

Posted by Attorney David McClurg in Labor Relations, Uncategorized | No Comments

The National Labor Relations Board (“NLRB”) has announced that on November 30th it will conduct a public meeting at which it will vote whether to issue final rules regarding certain provisions of the so called “quickie election” procedures the NLRB proposed on June 22, 2011.  The specific provisions of the final rules are not yet known, but it seems likely that they will provide for significantly faster processing of union-filed petitions for elections, electronic voting procedures, and a requirement that employers provide a petitioning union with detailed contact information regarding employees in the proposed unit early in the process.

Member Brian Hayes, the Ione Republican on the NLRB, submitted a highly critical and unusual response to Congressman John Kline, Chairman of the Committee on Education and the Workforce, which has oversight responsibilities over the NLRB.  Member Hayes asserted, among other things, Chairman Mark Pearce and Member Craig Becker were improperly attempting to rush the rule to final issuance prior to the expiration of Member Becker’s recess appointed later this year, without regard to established NLRB practices and without affording member Hayes “the requisite opportunity to review and draft a dissent to the rule.”  The NLRB’s longstanding procedural traditions and internal operating rules cannot, said Member Hayes, “simply be cast aside in pursuit of a singular agenda without doing irreparable harm to the Board’s legitimacy.”

The outcome of the November 30th public meetingwill be of great interest to all employers.

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