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HR InTouch
President’s Message
Cassy Van Dyke, SPHR
GMA SHRM members,
I recently attended our Wisconsin State Council meeting and was saddened to hear the stories of how the economy has devastated many areas of the state, particularly Rock County. At the same time, I was grateful that Madison has strong industry and employment stability in state government, education, and healthcare, in addition to other strong businesses/organizations. While some of us have felt the effects of the economy, many of us also have much to be grateful for here in the Madison area.
We are so pleased that even during this tough economic time, the membership of our chapter has continued to grow. There are many benefits to becoming a member and getting more involved in the chapter through volunteering. The GMA SHRM leadership team is continuously striving to provide you valuable products, services, and opportunities to learn and network.
In alignment with its mission to serve the professional and advance the profession, National SHRM recently solicited submissions from members for an “economic stimulus” award. Members were encouraged to submit their best practices in how the human resources profession has responded to the economic downturn. Out of the 15 finalists, three were in Wisconsin, and one went to American Family Insurance in our very own Greater Madison Area! Congratulations to the winners and to all who submitted their innovative strategies and practices. Click here to view the winners and their case studies.
As a reminder, mark your calendars now for the GMA SHRM 2009 Human Capital Conference, taking place on May 12, 2009 at the Alliant Energy Center. This is an affordable and valuable opportunity to continue your development even within a modest budget. More information will follow soon.
Also mark your calendars for our upcoming events, including the HR Summit on March 24 – “Recognizing and Coaching Different Personalities.” More information about all of our events can be found at: http://www.gmashrm.org/website/event_list.shtml.
As always, if you have any questions or feedback for me or anyone on the Board, please don’t hesitate to contact me.
I wish each of you ongoing success!
Cassy Van Dyke, SPHR
GMA SHRM President
2008-09 GMA SHRM Board
Additional information, including board contact information can be viewed at: http://www.gmashrm.org/website/leaders.shtml.
Government Affairs Update
Wisconsin Supreme Court Affirms Award of Worker's Compensation Disfigurement Benefits for Limp
Contributed by Mike Leibundgut, Director, GMA SHRM Government Affairs
On January 23, 2009, the Wisconsin Supreme Court, in Dane County v. LIRC/Graham, 2009 WI 9, decided that worker’s compensation disfigurement benefits are not limited to visible burns, scars, and amputations but can include an impairment that significantly affects the appearance of a person, including some, but not all, limps. Prior to this decision, there was some dispute whether a limp constituted a disfigurement under the Wisconsin Worker’s Compensation Act.
The majority of the Court decided that limps that are merely a motion probably are not compensable. Conversely, the majority decided that a limp may be compensable when the claimant’s legs look imperfect and asymmetrical on an area of the body that is exposed during the normal course of employment.
When a limp is connected to a visible imperfection that is exposed during the normal course of employment, one must analyze whether the remaining requirements of Wis. Stat. § 102.56(1), relating to compensable disfigurement claims, are met. Those requirements are as follows:
1. a permanent disfigurement;
2. disfiguring that must “occasion potential wage loss . . . take[ing] into account the age, education, training, and previous experience and earnings of the employee, the employee, the employee’s present occupation and earnings, and likelihood of future suitable occupational change;”
3. the disfigurement must occur on an area of the body that is exposed during the normal course of employment; and
4. “the appearance of the disfigurement, its location, and the likelihood of its exposure in occupations for which the employee is suited” must be taken into account in order to determine whether to award compensation.
Part of the State’s rationale for making worker’s compensation disfigurement benefits available to injured workers is the State’s assumption that employers discriminate against injured workers with a disfigurement.
In any event, the Court’s decision in the Graham case may result in more disfigurement claims by claimants involving an alleged limp.
Legal Updates
A Different Way for an Employee to Challenge Termination
By David R. Friedman, Friedman Law Firm
It’s not uncommon for a company to bring in an outside firm to evaluate an aspect of the company’s operation, and based on that report, make personnel change. Once those changes are made, it would not be a surprise if an employee sued the company. The most common claims would likely be for some form of discrimination. But what about claims for conspiracy to interfere with the employment relationship, conspiracy to maliciously injure, and tortuous interference with the employment relationship?
A Wisconsin company (ABC) hired a consulting firm to assist in its efforts to implement a new software system (the program) and to take a look at one component of that program. In the process of its review, Z (the consulting firm’s employee) reported that members of W’s (employee of ABC) team lacked confidence in her. W’s boss, S, and other ABC employees also had their doubts about W. As a result of this information, ABC offered W two choices – a new position for a limited time with a reduced salary, or a severance package in exchange for a release. W rejected both offers, quit, and then sued.
W sued not only her former boss, S, but she sued the person who prepared the report Z (and who was subsequently hired by the Company) as well as the consulting company.
W’s first claim was that her boss, S, and the consulting firms employee, Z conspired to maliciously injure her business reputation in violation of Wis. Stat. §134.01. W claimed S and Z conveyed false and misleading information about her to ABC’s CEO, so that the CEO would lose confidence and ultimately fire her.
The Wisconsin Court of Appeals said that to prove her claim, the plaintiff needed to establish that (1) the defendants acted together, (2) with a common purpose to injure the plaintiff’s business, (3) with malice, and (4) the acts financially injured the plaintiff. The court rejected W’s claim because she could not show that S and Z had acted maliciously.
W’s next claim was for tortuous interference with employment. A claim for intentional interference with employment has 5 elements: (1) a contractual relationship, (2) that the defendant interfered in the contractual relationship, (3) the interference was intentional, (4) a causal connection between the interference and the plaintiff’s damages, and (5) the interference was not justified or privileged.
In rejecting this theory, the court looked at the information that S and Z gave to ABC’s CEO and said that court record did not support an inference that conveyed the information was false.
W’s final theory was S and Z engaged in a common law conspiracy to get her fired.
A claim for common law conspiracy requires (1) the formation and operation of the conspiracy, (2) the wrongful act or acts done as part of the conspiracy, and (3) there must be damages as a result of the act(s). In rejecting this claim, the court could not find any factual support for the allegation that S and Z conveyed false and misleading information to ABC’s CEO.
When you read the elements of the various claim, it is apparent that even a routine decision to terminate an employee contains elements of each claim. The difficulty for the plaintiff is proving all of the elements of each type of claim. To improve ABC’s odds of prevailing, it is important to make sure that any report about an employee is (1) truthful, (2) factual, and (3) has backup documentation.
David R. Friedman has been practicing law for 38 years representing and assisting employers in negotiating collective bargaining agreements, appearing before state and federal agencies on matters involving the National Labor Relations Act, the Wisconsin Employment Relations Act, Title VII, and Wisconsin’s Fair Employment Act. He has lectured to state and national audiences on employment law topics.
Opposition to Discrimination
By Meg Vergeront, Stafford Rosenbaum Law Firm
The United States Supreme Court again significantly broadened the reach of retaliation claims under Title VII, the federal law which prohibits discrimination on the basis of race, color, religion, sex, or national origin. Title VII defines discrimination to include retaliation for, among other things, opposing discriminatory practices prohibited by the statute. On its face, the word "oppose" would seem to imply some sort of affirmative act.
In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the Court held that the mere act of answering questions about a fellow employee’s improper conduct during an internal harassment investigation constitutes "opposition" to a discriminatory practice and is therefore protected by Title VII. As a result of the Court's expansive definition of "opposition," employers likely will see an increase in retaliation claims.
This expansive reading of what it means to “oppose” discrimination prohibited by Title VII may also spill over and affect retaliation claims brought under other laws. For example, the federal Age Discrimination in Employment Act and the Americans with Disabilities Act also prohibit retaliation based on “opposition” to acts of age and disability discrimination, respectively. Presumably, courts would apply the interpretation of “oppose” set forth in Crawford and find that an employee who participates in an internal investigation into allegations of age or disability discrimination would have the same protection against retaliation that employees who participate in a sexual harassment or race discrimination investigation have.
In the aftermath of Crawford, employers must take the same care in dealing with employees who provide information about harassment during an investigation as they would with an employee who directly complains about harassment. Managers and supervisors should be clearly instructed that no one is to retaliate against such employees for participating in the investigation. If adverse action against the employee is necessary, the grounds for the adverse action should be well documented.
Meg Vergeront is a partner at the Stafford Rosenbaum law firm. For over 14 years, she has consulted with employers on a regular basis to help address specific issues relating to discipline and discharge, working closely with them to find common sense resolutions to the issues. Ms. Vergeront also litigates employment cases in state and federal forums.
The opinions expressed or implied are those of the authors and may not represent the official position of GMASHRM. These articles are intended for general information purposes and highlight developments in the legal area. These articles do not constitute legal advice. The reader should consult legal counsel to determine how this information applies to any specific situation.
Compensation and Benefits
March 10, 2009 – GMA SHRM Benefits Emphasis Group
Topic: Effective Communication Tactics for Benefits
This program will be an open forum led by a facilitator, Matt Boray from M3 Insurance Solutions, for you and fellow human resources professionals to share ideas, successes, and failures regarding the annual benefit enrollment process.
Click here for more information
American Recovery and Reinvestment Act Changes COBRA
By Adam Jensen, JD, CEBS, GBA, FLMI, Virchow Krause Employee Benefits, LLC
On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act (ARRA) that contained measures to make COBRA continuation coverage more affordable for persons who have lost their job.
Do you find all these upcoming changes confusing? Wondering what the notice requirements now are and what action steps you must take as an employer? If you answered yes to any of those questions, continue reading as the major provisions are summarized here.
GMA SHRM 2008 BENEFITS SURVEY AVAILABLE!
GMA SHRM and its survey partner, enetrix, a division of Gallup are pleased to provide the 2008 Benefits Survey! This new online report compiles statistically meaningful benefit data from more than 50 different GMA SHRM membership organizations in the Dane County area. A special thank you goes out to all our participating employers for their invaluable input and assistance in compiling this data.
Expanded Statistics in an Easy to Read Format!
Our new survey report breaks down the data by employer size and type of industry in an easy to read format. Expanded statistics range from traditional survey topics such as premiums, health insurance plan design, and retirement benefits to wellness, cost containment features, and PTO programs. The 2008 Survey provides HR Professionals like you with the authoritative data to evaluate and tailor a total compensation package that recruits and retains top talent in an increasingly competitive marketplace.
To purchase this survey, just follow this link:
https://gmashrm.enetrix.com/psitep/!stmenu_template.main?complex_id_in=236464.242303..242303.cat and click on the Purchase option at the top of the page. Participating members receive a significant discount on the cost of this survey.
Diversity
Employee Relations
Talent Management
Technology in HR
Learning and Development
March 24, 2009 – GMA SHRM Summit
Topic: Recognizing and Coaching Different Personalities: Walking the Tightrope Between Leadership Task & Individual Needs
Click here for more information
The SHRM 61st Annual Conference & Exposition will be held on June 28 – July 1, 2009, in New Orleans, at the Morial Convention Center. Tom Brokaw and Lee Woodruff have already been confirmed to be keynote speakers at this exciting and informative event! To learn more, visit: www.shrm.org/conferences/annual.
Recruitment and Staffing
The GMA SHRM Workforce Readiness and Diversity Committee volunteers with a variety of local organizations providing resume workshops, mock interviews, and trainings on a variety of topics. Every quarter, workshops are scheduled at the Division of Vocational Rehabilitation (DVR) through partnerships with the DVR and Dane County Job Center. Given the economic times, we may see an increased need for these seminars. Please keep your eye on the weekly e-blasts for dates and times. There is no required time commitment, a few hours a year makes a large impact. If you know of another organization that may benefit from our committees involvement, or would like to be on our volunteer email list for future opportunities, please contact Melissa Wieland via email.