Thursday, February 23, 2017 (8:00 a.m. to 4:30 p.m.)
8:10 to 9:30 a.m.
Employment Law Year in Review, plus What to Expect in 2017 & Beyond!
Bud Bobber, Ogletree Deakins
The strategic HR professional must see the big picture. Trends in the law cannot be fully appreciated based solely on the news of the day. A slightly broader view is required. This session will review the developing employment law landscape by highlighting the important changes in the last year and putting them in context. You’ll hear our expert’s assessment of the key developments in the law and the trends these reflect for employers.
- Knowledge of changes in employment law.
- Experts assessment of the impact of those changes.
- What a strategic HR professional might consider doing in response.
9:45 to 10:45 a.m.
NLRB and DOL - The Changing Landscape for Labor Policies in 2017 and Beyond
Jonathan Swain, Lindner & Marsack, S.C.
In this program we will discuss the present and future outlook for the recent activist approach of both the National Labor Relations Board (NLRB) and the Department of Labor (DOL) affecting both non-union, as well as, unionized employers.
We will discuss:
- The potential impact of the new Administration on NLRB and DOL rulemaking
- The NLRB and Lawful Handbook Provisions for all Companies
- Employee conduct toward the company and its supervisors – protected or not?
- English only rules
- Union organizing, quickie elections and the future of the Persuader Rule
9:45 to 10:45 a.m.
Creating an LGBTQ Inclusive Workforce & Reducing Exposure to EEOC Discrimination Claims
David C. Hertel and Laura L. Malugade, Husch Blackwell LLP
Employers should be cognizant of the evolving legal landscape involving lesbian, gay, bisexual and transgender (LGBTQ) workers due to recent court decisions, new government agency rules and guidance, and cultural developments. In this session, presenters will focus on recent court decisions involving sexual orientation and gender identity discrimination in the workplace, federal contractor rules, guidance from the EEOC and Occupational Safety and Health Administration, and implications under the Americans with Disabilities Act and the Family and Medical Leave Act. The presenters will also discuss best practices for internal policies such as restroom access for transgender workers, appearance standards, health insurance coverage, time off for medical procedures, and name changes.
11:00 a.m. to 12:00 p.m.
Avoiding Employment Law Pitfalls for the Digitally Integrated Employee
Quarles & Brady LLP
11:00 a.m. to 12:00 p.m.
FMLA Issues – How to Manage and Prevent Leave Abuse
Bob Simandl, Simandl Law Group, S.C.
With the federal Family and Medical Leave law nearing its 25th birthday and the Wisconsin Family and Medical Leave turning a sprite 30, many issues still exist surrounding the operation and administration of the Family and Medical Leave laws for employers. Additionally, with the intertwining of the federal and Wisconsin FMLA entitlements with obligations under the Wisconsin disability law and the Americans with Disabilities Act, the result is a compliance maze which challenges the most experienced of human resources professionals.
Bob Simandl, of the Simandl Law Group, S.C. will present on how to manage these laws and discuss the steps available to employers to prevent leave abuse. Bob, with his many years of experience in dealing with Family and Medical Leave issues and other leave compliance obligations, will assist attendees in analyzing how to formulate strategies to meet their legal obligations but to create a framework in which absence management will be a guiding force rather than being reactionary to the requesting employee. The presentation will also include a discussion of strategies to prevent leave abuse and otherwise minimize the possibility for work disruption. Specifically, the presentation will include:
- Preparing for and defending against Department of Labor Investigations of asserted violations of the law and understanding the employer’s rights and responsibilities.
- Creating an effective FMLA request process to minimize supervisor engagement and HR administration of FMLA requests.
- Discussion on how to establish an integrated Family and Medical Leave compliance strategy which incorporates employer responsibilities under the FMLA, ADA and other labor and employment laws without creating an unmanageable administrative monster.
- Understanding employee benefit rights and obligations in FMLA, Worker’s Comp, and continuing absences which fall within the scope of the Americans with Disabilities Act.
We encourage attendees to provide, in advance, specific questions they may want addressed during the program. These questions can be forwarded to Bob directly at: email@example.com.
1:00 to 2:00 p.m.
OSHA and WC – Regulations affecting Drug Testing, Safety Issues and Injury/Illness Reporting Requirements
Denise Greathouse, Michael Best & Friedrich LLP
The past year has seen groundbreaking changes to regulations and enforcement practices for Occupational Safety and Health (OSHA) and Worker’s Compensation. Those changes have established new investigation and reporting of work injury claims requirements and new techniques to document those practices. Learn more on these regulatory developments and decisions and what to expect for the future, while discussing best practices for employers as they incorporate these changes into day-to-day audit and investigation techniques and employee work-related injury reporting.
1:00 to 2:00 p.m.
The Expansion of 'Reasonable' Accommodations – Practical Tips
Dan Dennehy, von Briesen & Roper, s.c.
We will discuss:
- Employers have an ever-expanding duty to provide reasonable accommodations in the workplace.
b. Religious accommodations – a lesser duty than required under the ADAAA
c. LGBTQ issues
d. Nut and other food allergies
e. Odor-free workplaces
f. Service animals
- The employer’s duty is to provide ONLY reasonable accommodations but must be willing to modify job responsibilities.
- Wisconsin’s disability laws are different than the ADAAA, e.g., no essential functions under Wisconsin disability laws. An employer needs to abide by both.
- Medical and/or other certification to support situation should be required. Follow legal deadlines and do so timely.
- While the EEOC’s positions are likely to be modified under a Trump presidency, it will likely take years for those changes to occur.
- An employer has to be open to ever-expanding reasonable accommodations although the employee’s requested accommodation need not be granted.
- Use an interactive process with even the most difficult employee. Make sure you understand what the employee is requesting and thinks is necessary. Document the employer’s efforts with the interactive process.
- Be proactive. Don’t ignore information which may suggest an employee needs an accommodation.
2:15 to 3:15 p.m.
New FLSA Rules and Related Regulations – Now What?
Meg Kurlinkski, Godfrey & Kahn S.C.
2:15 to 3:15 p.m.
Investigating Employee Theft, Embezzlement, and other Criminal Conduct in the Workplace
Scott Paler and Steve DiTullio, DeWitt Ross & Stevens S.C.
This session will provide the following take-home points:
- In the year 2017, it is more important than ever before for employers to think strategically about preventing criminal activity in the workplace. Employers should assess policies, procedures, insurance coverage, and job assignments.
- If an employer receives a report of possible criminal activity, or has suspicions, it should act promptly, assign an appropriate investigator, and take other immediate steps designed to mitigate damage. Whether to hire a third-party investigator should be considered depending on the magnitude of the theft or criminal activity.
- As an investigation unfolds, employers should give appropriate consideration to the possible civil claims that can be filed, the ability to "collect" from the employee if civil litigation is successful, and the role of state and federal law enforcement authorities.
- Employers should exercise caution before resorting to investigation-related background checks or polygraphs, or using audiotaped interviews. Each carries risk if handled improperly.
3:30 to 4:30 p.m.
#SocialMedia #Dos&Donts #UCantFireMe
Reinhart Boerner Van Deuren s.c.
Bud Bobber, Employment Law Year in Review, plus What to Expect in 2017 & Beyond!
Bernard J. ("Bud") Bobber is a shareholder in the Milwaukee office of Ogletree Deakins. Mr. Bobber represents employers before federal and state courts and administrative agencies throughout the country in all areas of employment law, with particular focus on wage and hour, trade secrets/noncompete, employee benefits and employment discrimination matters. Mr. Bobber has extensive experience in the defense of class action cases. He also routinely represents clients in labor arbitrations and in unfair labor practice proceedings before the National Labor Relations Board. Mr. Bobber also provides both organized and union-free employers with employment and labor law advice, and provides assistance with problem prevention. Mr. Bobber received his law degree from Northwestern University School of Law and his Bachelor of Arts from the University of Illinois. Mr. Bobber has also been listed in The Best Lawyers In America® for over 10 years. He was also selected for inclusion in the 2005-2015 Wisconsin Super Lawyers® lists. Best Lawyers named Mr. Bobber the 2015 Management-Employment Lawyer of the Year.
Jonathan Swain NLRB and DOL - The Changing Landscape for Labor Policies in 2017 and Beyond
Jonathan T. Swain is a senior shareholder and member of the Board of Directors of the Law Firm of Lindner & Marsack, S.C. Mr. Swain devotes his practice to representing management in labor and employment law issues in both the public and private sector. He consults with clients concerning all aspects of labor management relations including union related strategies, contract negotiations and contract administration, including acting as chief spokesperson at the bargaining table. He represents employers in the area of individual rights and responsibilities in the workplace with particular emphasis on employment discrimination, including sex discrimination, sexual harassment, ADA, FMLA and ADEA matters.
Mr. Swain has taught courses at the college level in the area of personnel management and labor law. He is a frequent speaker on the law of collective bargaining, the Americans with Disabilities Act, discrimination in the workplace, and other labor and employment law trends. He is a regular course lecturer at the University of Wisconsin – Milwaukee Extension School of Management on the subject of collective bargaining.
Mr. Swain is contributing author to "Law of Damages" and "Wisconsin Employment Law," both publications of Wisconsin Bar Association. He was a member of the Governor's Advisory Council on Judicial Selection for the State of Wisconsin from 1987 to 2001, having been appointed to that Council by Governor Tommy Thompson in January, 1987. In 1991, he was appointed by Senator Robert Kasten to the Federal Merit Section Commission for the United States District Court, Eastern District of Wisconsin. In 1994, Mr. Swain was appointed by Governor Thompson to the Wisconsin Labor and Management Council and has served as the Management Co-Chair.
Mr. Swain received his law degree from Marquette University Law School in 1975. He is admitted to practice before the Sixth, Seventh, and Eighth Circuit Courts of Appeal, a variety of federal district courts in several states and all courts in the State of Wisconsin. He is a member of the American Bar Association and presently serves on the Committee on Employee Rights and Responsibilities of the Labor Law Section of the American Bar Association and is a member of the International Labor Law Committee. He is also a member of the Wisconsin Bar Association, Labor and Employment Law Section, having previously served as its chairperson.
David C. Hertel Creating an LGBTQ Inclusive Workforce & Reducing Exposure to EEOC Discrimination Claims
Throughout his career, David has represented management in all aspects of labor and
employment law. A significant part of his practice is representing management in labor
contract negotiations, unfair labor practice proceedings, labor grievances and arbitrations,
and responses to union organizing efforts. David also regularly defends employers in
employment litigation involving discrimination and wrongful discharge, including sex, age,
race and disability discrimination actions. In addition, he has extensive experience in
representing employers in complex occupational safety and health proceedings, wage
and hour proceedings and covenants not to compete litigation. As a partner in Husch
Blackwell’s Technology, Manufacturing & Transportation Industry unit, he represents
businesses in the manufacturing, technology and transportation industries; in addition, he
has extensive experience in representing commercial construction, financial, food and
insurance companies, as well as employers in the healthcare industry.
David represents clients before the U.S. Department of Labor, National Labor Relations
Board, Equal Employment Opportunity Commission, Occupational Safety and Health
Administration, Wisconsin Department of Workforce Development and Office of Federal
Contract Compliance Programs, as well as in state and federal courts.
David also advises employers on compliance with employment and labor laws. In this
capacity, he counsels businesses on labor and employment issues that arise in
connection with reductions in workforces, acquisitions, sales, mergers, plant closings and
relocations. David also prepares executive employment agreements, confidentiality and
noncompete agreements, consulting and independent contractor agreements, and
employment policies, as well as termination and exit incentive plans and documents. In
addition, he prepares affirmative action programs and represents management in audits of
such programs by federal, state and local governmental agencies; develops and conducts
training sessions for supervisors and managerial employees; and develops procedures to
comply with state and federal family and medical leave laws, the Americans With
Disabilities Act and workers’ compensation laws.
Laura L. Malugade Creating an LGBTQ Inclusive Workforce & Reducing Exposure to EEOC Discrimination Claims
Laura advises employers on a wide range of labor and employment law matters, such as
drafting workplace policies and handbooks, discipline and discharges, discrimination
claims, wage and hour disputes, occupational health and safety regulation, restrictive
covenant agreements, grievance arbitrations, unfair labor practice charges and labor law
Laura has a broad range of experience in state and federal courts and before
administrative agencies, including the U.S. Equal Employment Opportunity Commission, the
Wisconsin Equal Rights Division, the National Labor Relations Board, and the Occupational
Safety and Health Review Commission.
Prior to joining the firm, Laura worked as a judicial intern for the chief justice of the
Wisconsin Supreme Court and as a law clerk for the Legal Aid Society of Milwaukee.
Bob Simandl, FMLA Issues – How to Manage and Prevent Leave Abuse
Robert J. Simandl, founding member and principal at Simandl Law Group, S.C., has over 25 years of experience advising clients on a wide range of employee benefit, labor and employment law issues. This experience enables Mr. Simandl to advise clients on human resources (HR) law issues taking into consideration all areas of opportunity and vulnerability, including the litigation of HR law-based claims. He has extensive experience in advising employers in employee benefit plan design, issues associated with ill and injured workers, labor negotiations and maintaining union-free status, and multi-employer health and welfare and pension plan vulnerability and compliance.
Mr. Simandl counsels employers on all aspects of workplace compliance responsibilities. This includes hiring, disciplining and terminating employees, accommodation obligations, wage and hour issues, immigration, affirmative action, discrimination complaints, non-competition agreements and employee handbook design and development. He has represented employers before the federal district courts, National Labor Relations Board, the 7th Circuit Court of Appeals and a number of administrative agencies and tribunals, including the Wisconsin Employment Relations Commission, Wisconsin Equal Rights Division and Equal Employment Opportunity Commission.
Mr. Simandl served as an advisor to several legislators in drafting the federal Family and Medical Leave Act and served on the Wisconsin Family and Medical Leave Task Force. He also has advised legislators from several states in the drafting and amendment of state Family and Medical Leave laws. He has worked with employers to develop standard procedures and forms for FMLA compliance, factoring in the obligations of the employers under the Americans with Disabilities Act and worker’s compensation laws. He also counsels employers on disability discrimination and accommodation concerns.
Mr. Simandl has been chief spokesperson for numerous labor contract negotiations. He has assisted employers in addressing benefits for retirees and in rationalizing benefits for employees, including multi-employer and multiple-employer pension and health and welfare benefits plan withdrawal, liability analysis and planning. He also has counseled employers during organizing campaigns and strikes, and represented employers in grievance arbitrations and proceedings before the National Labor Relations Board.
Mr. Simandl is a member of the State Bar of Wisconsin and is also a certified public accountant. He is the author of the "Family and Medical Leave Law Compliance Manual" (1993) and co-author of "The COBRA Guide: COBRA Compliance for Wisconsin Employers" (2000). He is a frequent speaker on the FMLA, ADA, ERISA and on benefits for older workers. He has also authored a variety of publications on these topics.
Mr. Simandl earned his undergraduate degree, with honors, from the University of Wisconsin-Milwaukee and graduated, cum laude, from Marquette University Law School.
Denise Greathouse OSHA and WC – Regulations affecting Drug Testing, Safety Issues and Injury/Illness Reporting Requirements
Denise represents management clients in regard to labor and employment matters. Clients in sectors such as construction, transportation, manufacturing, healthcare, food, and education turn to her for informed guidance on matters involving:
- Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA) issues,including investigating, defending citations and assisting with abatement
- Workplace investigations, including defending claims regarding matters including discrimination, Title IX,harassment, theft, suspicion of drugs at the workplace, whistleblower complaints
- Labor arbitration, employment tort and breach of contract lawsuits, unemployment insurance appeals, employee separation/termination matters, unemployment compensation matters, workmen’s compensation matters
- Employee safety and health
- Medicare/Medicaid billing disputes and Social Security disability
Denise brings a valuable perspective to her counsel in these areas as the result of her previous work as Assistant District Attorney with the Waukesha County District Attorney’s Office.
Margaret Kurlinski, New FLSA Rules and Related Regulations – Now What?
Meg Kurlinski is a shareholder member of Godfrey & Kahn, S.C.’s Labor & Employment Practice Group. Meg assists employers with a variety of labor and employment matters, including the management of day-to-day employment issues, drafting and enforcing restrictive covenant agreements, administering family and medical leave laws, litigating federal and state discrimination claims, conducting unlawful harassment investigations, and developing affirmative action plans. Meg also counsels clients regarding the employment and labor matters that are related to business sales, mergers and acquisitions, and other corporate restructuring.
Meg received her law degree, with honors, from Washington University School of Law in St. Louis, Missouri. While at Washington University, Meg was a staff editor for the Washington University Global Studies Law Review. She received her Bachelor of Arts in Philosophy from Truman State University.
Meg regularly conducts workshops and seminars on employment law topics for clients and other employment law professionals.
Scott Paler Investigating Employee Theft, Embezzlement, and other Criminal Conduct in the Workplace
Scott Paler is a partner at DeWitt Ross Stevens S.C., one of Wisconsin's largest law firms. He serves as Chair of the Firm's Labor and Employment Practice Group.
Scott has extensive experience advising companies on employment issues such as hiring processes, wage and hour practices, non-compete agreements, disciplinary investigations, and terminations. He has also helped defend companies in a wide variety of employment lawsuits, and litigated general commercial disputes.
Uniquely, Scott has developed a niche expertise in background screening. Over the last eleven years, he has assisted employers nationwide in creating and administering sound, legally compliant background screening programs. Among other things, he has helped employers prepare consent forms and adverse action letters, determine when they can reject a candidate based upon background screening information, and respond to lawsuits related to background screening practices. Scott serves as Co-Chair of the Litigation Avoidance Committee for the National Association of Professional Background Screeners.
In 2013, 2014, 2015 and 2016, Wisconsin Super Lawyers recognized Scott as a "Rising Star." In 2016, Scott was also recognized as the exclusive winner of the Client Choice award in the area of Employment and Benefits in the State of Wisconsin. The Client Choice award recognizes attorneys around the world that stand apart for the excellent client care they provide and the quality of their service. Uniquely, attorneys can only be nominated for this award by corporate counsel.
Steve DiTullio Investigating Employee Theft, Embezzlement, and other Criminal Conduct in the Workplace
Businesses face an array of federal and state employment laws and regulations that they must comply with in the workplace. Unfortunately, it is a fact of business life that some current employees or former employees will commence employment litigation or engage in misconduct that harms the business. Whether it is providing proactive advice on employment law compliance issues or defending businesses in litigation, Steve has successfully worked with businesses throughout the country to help guide them through the many legal issues that arise in the workplace, including theft and embezzlement issues. Clients enjoy the high level of responsiveness and competence that Steve brings to their businesses. He prides himself on the proactive compliance advice which often helps to avoid claims by disgruntled employees. His proactive advice can also assist businesses in protecting their interests and providing successful defenses in employment litigation.
Steve has been the lead attorney in a case that has been closely watched nationally, EEOC v. Flambeau Corp., which was recently decided in favor of the employer by the Western District of Wisconsin. The case held that Flambeau's testing component of its wellness plan fell within the safe harbor exception of the Americans with Disabilities Act. This decision has important consequences for employers throughout the nation and provides a roadmap for wellness plan compliance for employers. It has recently been reported in the New York Times.
Another area of Steve's practice focuses on the factors to be considered in determining whether an independent contractor or employer-employee relationship exists under Wisconsin Unemployment Compensation statutes, Worker’s Compensation statutes, the Internal Revenue Service Code, and other employment-related statutes. Companies need to be aware of each of these tests because failure to comply with the respective tests could result in a penalty and/or interest assessment if an individual is mischaracterized as an independent contractor rather than an employee.