Thursday, February 22, 2018 (8:00 a.m. to 4:45 p.m.)
8:00 to 9:30 a.m.
Opening Session: Employment Law Year in Review
Bud Bobber, Ogletree Deakins
The strategic HR professional is expected to see the big picture. A broader view helps employers understand the significance, scope, and real-world implications of employment law changes. This session will review the developing labor and employment law landscape by highlighting the important changes in the last year and putting them in context. You’ll also gain critical insight into what looms ahead for 2018 and beyond. The presenter will discuss:
- A summary of recent changes in employment law.
- Expert legal assessment of the impact of those changes and how to respond.
- What to anticipate on labor and employment policy and regulations going forward.
9:45 to 10:45 a.m.
Breakout Session 1A: How to Minimize the Risk and Respond to Bullying and Harassment Claims in the Workplace
Rob Sholl, Reinhart Boerner Van Deuren SC
The topic of sexual harassment is exploding in the media. Victims of harassment often don’t report the harassment to HR or management at the time for fear of retaliation. Even when harassment or bullying is promptly reported and verified, employers often struggle in determining the proper level of discipline. This presentation will cover:
- What steps an employer should take to encourage prompt reporting of harassment or bullying.
- What an employer should do when an investigation into harassment or bullying is inconclusive.
- Appropriate levels of discipline when an investigation reveals harassment or bullying has occurred.
9:45 to 10:45 a.m.
Breakout Session 1B: In Search of the Truth for Workplace Investigations: What are the Legal Pitfalls?
Laurie Peterson and Oyvind Winstrom, Lindner & Marsack S.C.
In this session you will learn:
- How to structuring the investigation to get it right the first time to avoid litigation, when possible.
- How to successfully defend against litigation when it is unavoidable.
- Choosing the right neutral investigator and deciding when to retain an outside investigator
- What and how to properly document the investigation.
- Approaching and interviewing potential witnesses in the search for the truth.
- Best practices in reaching a conclusion and communicating the results of the investigation.
11:00 a.m. to 12:00 p.m.
Breakout Session 2A: Is Your Employee Handbook Protecting You or Exposing You?
Dave Hertel and Laura Malugade, Husch Blackwell LLP
Employee handbooks are an essential tool for employers to reduce employment-related liabilities and successfully defend against lawsuits. In this session, the presenters will discuss key policies and potential liabilities associated with your employee handbooks, including:
- Essential policies to have in an employee handbook (and what not to include!) and issues to consider given recent court decisions and other developments in the law.
- The common mistakes employers still make in drafting particular employment policies.
- Phrases and terms to avoid to mitigate risk.
- What should be included in the employee handbook acknowledgment form.
11:00 a.m. to 12:00 p.m.
Breakout Session 2B: ACA: Navigating How to Treat Employees who are Seasonal, Variable Hour, or Transitioning Between FT/PT
John Barlament, Quarles & Brady LLP
In this session you will learn:
- The basics on how all employees of "large employers" must be classified under the ACA.
- What happens when an employee who was full-time becomes part-time (and vice versa).
- How to deal with other situations where employees change classifications (e.g., temporary / seasonal to "regular").
- How to report these changes on IRS Forms 1094 / 1095.
1:15 to 2:15 p.m.
Breakout Session 3A: 2018’s Top Compliance Issues
Sarah Platt and Keith Kopplin, Ogletree Deakins
With uncertainty surrounding a number of federal regulatory changes and the proliferation of state and local laws, keeping up to speed and in compliance is a growing challenge for employers. In this session, we will discuss some of the most vexing issues and practical considerations for how to address them, including:
- Pay Equity laws, including salary history bans.
- The increasing number of state and local paid sick leave laws.
- "Ban the box" laws and background check practices.
- Joint employer standards.
- The state of wage and hour overtime rules.
1:15 to 2:15 p.m.
Breakout Session 3B: Recent OSHA Changes and What Employers Need to Know
Denise Greathouse, Michael Best & Friedrich
OSHA has recently staked out new territory asserting its right to regulate employment practices, policies, and decisions. The impact of these changes will require greater collaboration between HR and safety departments. This presentation will cover recent regulatory changes and what employers need to know, including:
- OSHA regulation of drug testing and injury reporting policies.
- Mandatory rapid reporting of injuries and public reporting of employee injury and illness records.
- The appointment of unions to serve as employee representatives during inspections.
- Expanded OSHA whistleblower investigations and a reduced threshold of employee proof for retaliation/discrimination claims.
2:30 to 3:30 p.m.
Breakout Session 4A: Leave Laws Making You Sick? Getting a Handle on Intermittent FMLA Leave
Bob Simandl and Jon Eiden, von Briesen & Roper, s.c.
Intermittent leave has become both an operational and administrative challenge which creates disruption and uncertainty for employers. This presentation will cover:
- How to develop an integrated FMLA compliance plan including coordination of FMLA obligations with ADA compliance responsibilities.
- How to assess when there is a need for medical care vs. a desire for time off and how to effectively communicate those responses.
- How to obtain necessary health care provider information to determine alternative employment opportunities during an individual’s absence due to intermittent leave.
- Defining intermittent leave conditions and notice responsibilities.
2:30 to 3:30 p.m.
Breakout Session 4B: Off Duty Conduct and its Impact on the Workplace
Jonathan Levine, Littler Mendelson P.C.
What employees do with their "spare time" continues to create headaches for employers. News stories about employees engaging in off-duty misconduct (including social media posts containing racist or derogatory remarks), offensive body markings, wearing company logoed clothing at protests, having an employee calling in sick but later learning they attended a social event, etc. are now commonplace. In this session you will learn:
- How to handle public backlash against employers, including demands an employee be fired.
- Understanding how federal and state laws impact your decisions.
- Disciplinary steps you can take with the employee.
- How to protect your organization in these 'off duty' situations.
3:45 to 4:45 p.m.
Closing Session: Hiring Process Do’s and Don’ts
Doris Brosnan and Georff Trotier, von Briesen & Roper, s.c.
Employers are increasingly facing sticky social media situations, managing inquiries into salary history, mitigating risks in criminal background investigations, and navigating "TMI" (too much information) situations. During this presentation the latest challenges and legal pitfalls will be explored when it comes to recruiting, emphasizing practical advice and liability avoidance. The presenters will discuss:
- Best practices for safe and effective social media screening during the hiring process.
- Risk management for criminal background checks.
- Handling delicate questions such as salary history and TMI situations.
- How to protect your organization throughout the hiring process.
Bud Bobber, Employment Law Year in Review
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.
Robert K. Sholl, How to Minimize the Risk and Respond to Bullying and Harassment Claims in the Workplace
Robert K. Sholl is a shareholder in Reinhart’s Labor and Employment and Litigation practices. He advises and defends employers in the full range of labor and employment law matters. Best Lawyers in America named Mr. Sholl the 2017 Milwaukee Litigation – Labor and Employment "Lawyer of the Year." It also lists him in three separate categories: Litigation – Labor and Employment Law; Labor Law – Management; and Employment Law – Management. Chambers USA: America’s Leading Lawyers for Business ranks Mr. Sholl in the top tier of Wisconsin Labor and Employment attorneys (one of only five attorneys achieving this ranking). Mr. Sholl represents management exclusively. His employment practice encompasses employment discrimination, workplace harassment, noncompete agreements, whistleblower and breach of employment contract lawsuits before state and federal agencies and courts. He defends employers in unemployment and worker’s compensation hearings, wage/hour disputes and employee health and unemployment and worker’s compensation hearings, wage/hour disputes and employee health and safety disputes. His traditional labor practice includes collective bargaining, unfair labor practice hearings before the National Labor Relations Board, and labor arbitrations.
Laurie A. Petersen, In Search of the Truth for Workplace Investigations: What are the Legal Pitfalls?
Laurie A. Petersen is a shareholder and Board Member with the law firm of Lindner & Marsack, S.C. Ms. Petersen’s practice covers a broad spectrum of labor and employment matters for clients in a range of industries including Employment Policies and Practices, Unfair Labor Practices, College Bargaining, Employee Discipline and Discharge, Employment Discrimination and Litigation, and Wrongful Termination among many others. She has extensive experience litigating before various courts and federal and state agencies. She also counsels employers on all aspects of labor and employment law and has developed numerous employee and supervisory training programs, as well as employee handbooks, for her clients. Ms. Petersen is on the Executive Committee of Worklaw® Network and a frequent lecturer on a wide array of labor and employment topics. She has taught continuing education courses at the University of Wisconsin – Milwaukee Outreach Programs and at Marquette University on safety and health, affirmative action and human resources management. Ms. Petersen has held an adjunct faculty position at Marquette University Law School where she taught employment discrimination law. She is recognized by the Wisconsin Law Journal as a 2017 Women in the Law Honoree.
Oyvind Windstrom, In Search of the Truth for Workplace Investigations: What are the Legal Pitfalls?
Oyvind Winstrom is a shareholder and member of the Board of Directors with the Milwaukee law firm of Lindner & Marsack, S.C. His practice is focused primarily on the litigation of employment claims, equal employment matters, and the development and oversight of personnel policies and procedures. Mr. Wistrom also devotes a significant portion of his practice to assisting and counseling companies in various employment matters, including discharge and discipline issues, non-compete and other employment contract matters, wage and hour disputes, worker’s compensation and family and medical leave issues, as well as individual rights and responsibilities in the workplace. He is a frequent speaker on various employment related matters and has written numerous articles on employment law topics. Mr. Wistrom received his undergraduate degrees in Political Science and Behavioral Science & Law from the University of Wisconsin-Madison and his law degree from Marquette University Law School, cum laude, in 1995. He is currently a member of the Wisconsin Bar Association, including its Labor and Employment Law Section, the American Bar Association, the Human Resource Management Association of Southeast Wisconsin, Inc. and the Metro Milwaukee Association of Commerce. He also served as the board member for Volunteers of America – Wisconsin and was previously the board chair for 4 years. Mr. Wistrom was named a "Super Lawyer" by Law & Politics and Milwaukee Magazine since 2009, and was previously named "Rising Star" by Milwaukee Magazine in 2006, 2007 and 2008.
David C. Hertel, Is Your Employee Handbook Protecting you or Exposing You?
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. 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, Is Your Employee Handbook Protecting You or Exposing You?
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 compliance. 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.
John Barlament, ACA: Navigating How to Treat Employees who are Seasonal, Variable Hour, or Transitioning Between FT/PT
Quarles & Brady partner John Barlament represents employers, third-party administrators, brokers, and benefit consultants in all aspects of employee benefits law. In particular, he offers legal services in the areas of health and welfare plans, retirement plans, and executive compensation plans. John’s mission is to help companies navigate benefits law in order to act in the best interests of both management and employees, while remaining fully compliant with all regulations governing employee benefits. He is recognized as a national speaker on health care reform issues and is a contributing author on two of the country’s leading manuals in these areas (EBIA’s Consumer-Driven Health Care and EBIA’s HIPAA Portability, Privacy & Security). Building upon this deep experience with the HIPAA Privacy and Security Rules, John has assisted clients with many other privacy and security law issues, including the Gramm-Leach-Bliley Act, data breach notification laws, the Children’s Online Privacy Protection Act (COPPA), website privacy policies, Social Security Number restrictions, the "Red Flags Rule," and international privacy laws.
Sarah Platt, 2018’s Top Compliance Issues
Sarah Platt provides proactive counsel to employers regarding hiring, discipline, accommodation, leave, and termination issues to avoid litigation and creates a strong record to defend employment actions should litigation arise. She has experience drafting strong employment policies to comply with state and federal laws and guide employee conduct; investigating and responding to harassment complaints; preparing affirmative action plans to comply with federal contracting requirements, and conducting pay equity audits to help employers proactively assess their risks.
Keith Kopplin, 2018’s Top Compliance Issues
Keith Kopplin assists clients in resolving wage and hour class and collective actions, defending employment discrimination claims, responding to government audits, and improving workplace policies and procedures. He also provides day-to-day counseling to employers regarding a wide range of HR matters including discipline and discharge decisions, the Wisconsin and federal Family and Medical Leave Acts, wage and hour practices, and workplace accommodations.
Denise Greathouse Recent OSHA Changes and What Employers Need to Know
Denise, Partner at Michael Best & Friedrich, 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.
Bob Simandl, Leave Laws Making You Sick? Getting a Handle on Intermittent FMLA Leave
Bob Simandl is a Shareholder with over 30 years of experience advising clients on a wide range of employee benefit, labor and employment law issues. This experience enables Bob 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 multi-employer health and welfare plan and pension plan vulnerability and compliance.
Bob counsels employers on all aspects of workplace compliance including hiring, disciplining and terminating employees, accommodation obligations, wage and hour issues, 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, 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. He works 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 workers’ compensation laws. He also counsels employers on disability discrimination and accommodation concerns. Bob 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 as an appointee by the Wisconsin Governor. Bob assists employers in addressing benefits issues for employees and retirees including multi-employer pension plan withdrawal liability analysis, evaluation, contract planning and contesting of assessments. He counsels employers during organizing campaigns and strikes and represents employers in grievance arbitrations and proceedings before the National Labor Relations Board. He has served as chief spokesperson for numerous labor contract negotiations.
Bob is a member of the State Bar of Wisconsin and is also a certified public accountant. He is the co-author of "The COBRA Guide: COBRA Compliance for Wisconsin Employers" (2000) and author of the "Family and Medical Leave Law Compliance Manual" (1993). He is a frequent speaker on the FMLA, ADA and ERISA.
Jon Eiden, Leave Laws Making You Sick? Getting a Handle on Intermittent FMLA Leave
Jonathan Eiden is a member of the Labor and Employment Section. His practice focuses on compliance with state and federal laws and regulations, including discrimination, workplace standards, medical leave requirements, wage and hour regulations, and labor relations. His clients include public and private employers of all sizes in a variety of industries. Jon’s professional memberships include the State Bar of Wisconsin and the Outagamie County Bar Association. He is a member of the Board of Directors for Community Clothes Closet, a non-profit organization providing free clothing to those in need in Northeast Wisconsin. In his spare time, Jon enjoys endurance sports including marathons, ultramarathons and duathlons. He has participated in several local races such as Tour of America’s Dairyland, Race the Lake and the Fox Cities Marathon. He also enjoys golf, tennis and cross country skiing.
Jon Levine, Off Duty Conduct and its Impact on the Workplace
Jon Levine has a national practice focusing on representing employers in all areas of labor-management relations, including litigation before the National Labor Relations Board and in state and federal courts. Jon’s notable successes include Metropolitan Milwaukee Association of Commerce v. Doyle, Case No, 10-C-0760 (E.D. Wis. 2010) in which the court struck down a provision of the Wisconsin Fair Employment Act prohibiting employers from conducting mandatory meetings with employees to discuss issues related to union organizing. He also handled Metropolitan Milwaukee Association of Commerce v. Milwaukee County, 431 F.3d 277 (7th Cir. 2005) in which the court struck down the Milwaukee Labor Peace Ordinance, a law that limited the rights of employers to oppose efforts of unions to organize their employees.
Additionally, Jon counsels clients on best business and employee relations practices, complex business transactions and the related issues arising from mergers, acquisitions, and workforce reductions, and other types of business restructuring.
Doris Brosnan, Hiring Process Do’s and Don’ts
Doris Brosnan is a Shareholder and Leader of the firm’s Labor and Employment Law Section, and focuses exclusively on assisting clients with employment issues. Doris regularly advises health care, corporate and public sector clients on dealing with disloyal or difficult employees, accommodating disabilities in the workplace, harassment, workplace violence, FMLA, and the development of effective employment policies and practices. She regularly assists clients in preparing and implementing employee transition plans, including employment due diligence in mergers and acquisitions, severance agreements, business closings and reductions-in-force, and business reorganizations. Doris has defended schools in significant Title IX matters and regularly advises high schools and universities on Title IX compliance. She also assists clients in achieving employment objectives by providing immigration services, with an emphasis on business immigration. In addition to providing counseling on litigation avoidance, Doris defends employers in all types of employment-related litigation, including agency discrimination and wage claims, arbitrations, and multi-party employment litigation before federal and state courts. Doris also helps employers litigate to protect their confidential business information from disclosure by disloyal executives and salespeople. Doris advises hospitals and health care systems on a wide range of medical staff questions, including credentialing, employment and privilege, terminations and suspensions, peer review issues, and required reporting.
Geoff Trotier, Hiring Process Do’s and Don’ts
Geoff Trotier is a Shareholder in the Labor and Employment Law Section. Geoff proactively assists businesses of all sizes and complexities as well as municipalities and school districts in many diverse labor and employment issues, including:
- Drafting, enforcing and litigating non-compete agreements;
- Avoiding and defending discrimination claims;
- Advising on reasonable accommodation and return-to-work issues;
- Advising clients on Family and Medical Leave Act (FMLA) issues;
- Resolving Fair Labor Standards Act (FLSA) and other wage/hour disputes; and
- Providing training in human resource matters.
He works closely with clients to devise and implement litigation avoidance strategies. Geoff frequently defends employers in matters involving discrimination, non-compete agreement enforcement, trade secrets, FMLA disputes, wrongful termination, OSHA, whistleblower claims, and wage and hour suits. With his track record of success in front of government agencies and in court, Geoff’s strategies have saved significant money for both private and public sector employers. In 2010 Geoff was recognized as an "Up and Coming Lawyer" by the Wisconsin Law Journal. He is a member of the American Bar Association (Labor & Employment Section), the State Bar of Wisconsin (Labor & Employment Section) and the Milwaukee Bar Association.