Dewitt Ross & Stevens Law Firm

Dewitt Ross & Stevens Law FirmESOP BlogEmployee Background ScreeningFair Credit Reporting ActEmployment Law Blogemployee stock ownership planESOP Deals Financedworkplace investigationsNLRBBanner Health Systems Banner Estrella Medical Centeryoung familiesestate planningwillsClient AlertsInventors and Entrepreneurs Club of Kenosha and Racinepatent attorneyFirm NewsFellowsWisconsin Law FoundationWFFAWorking Families Flexibility Act of 2013ESOPcraft breweryDeschutes BreweryPrivate Employee Ownership Act of 2013S Corp ESOPNoel Canning v. NLRBPatient Protection and Affordable Care ActFair Labor Standards Actbusiness saletax lawWisconsin Unemployment Compensationindependent contractorindependent contractor classificationWorker’s CompensationDepartment of Homeland SecurityEmployment Eligibility Verification Form I-9I-9esop retirement planqualified retirement plansterminationPTOpaid time offbrewery ESOPNew Belgium Brewing ESOPlilly ledbetterstrategic enforcement planEEOCharassmentbackground checksFMLA posterEqual Employment For All ActFCRAcredit checksESOP succession planningSeventh Circuit Court of AppealsEspenscheid et al v DirectSat USA LLC7015e223-1217-46d1-88ec-a496c66022cbhttp://dewittross.com/news-education/posts/2013/05/17/esops-allow-business-owners-to-cash-out-of-an-otherwise-illiquid-asset ESOP BlogESOPs Allow Business Owners to “Cash Out” of an Otherwise Illiquid AssetWe have written a great deal over the last few months about the tax, employment continuity, production and other advantages of using ESOPs in succession planning. However, “succession planning” is not the exclusive motivator for a business owner to use an ESOP. Many business owners often hear from their wealth management professionals that “asset diversity” is a key for stable retirement planning. Yet, many of these business owners are powerless to diversify from their single biggest asset: their business!Fri, 17 May 2013 13:15:24 ZWe have written a great deal over the last few months about the tax, employment continuity, production and other advantages of using ESOPs in succession planning. However, “succession planning” is not the exclusive motivator for a business owner to use an ESOP. Many business owners often hear from their wealth management professionals that “asset diversity” is a key for stable retirement planning. Yet, many of these business owners are powerless to diversify from their single biggest asset:  their business! This is where an ESOP comes in. A business owner can establish an ESOP to purchase whatever percentage of the owner’s business as the owner wants to sell. Unlike most private equity firms and other investors, an ESOP is perfectly willing to hold a minority interest in your company.  Accordingly, a business owner can decide to: <ol> <li>Establish an ESOP;</li> <li>“Cash out” a minority interest in the Company by selling it to the ESOP;</li> <li>Maintain control of the Company; and</li> <li>Invest the cash in other assets, thus establishing the desired diversity.</li> </ol> Although not legally required, the business owner could continue to sell more and more stock to the ESOP, thereby using it as succession planning tool. ESOP Partners, LLC has more comments on this strategy <a href="http://esoppartners.com/blog/bid/91910/Selling-to-an-ESOP-Provides-a-Business-Owner-with-Liquidity-and-Diversification">here</a>. d8896d4f-3ca5-4af0-950b-8361a259d740http://dewittross.com/news-education/posts/2013/05/16/small-mistakes-with-employee-background-screening-can-cause-big-problems Employee Background ScreeningFair Credit Reporting ActEmployment Law BlogSmall Mistakes With Employee Background Screening Can Cause Big Problems Small employee background screening mistakes continue to give rise to large class actions with big settlements. If you obtain background screening reports from a third-party agency regarding your job applicants or employees, and have not reviewed your background screening policy and practices in a while, now is a good time to do so. Here are four things to look for:Thu, 16 May 2013 21:28:46 ZSmall employee background screening mistakes continue to give rise to large class actions with big settlements. If you obtain background screening reports from a third-party agency regarding your job applicants or employees, and have not reviewed your background screening policy and practices in a while, now is a good time to do so. Here are four things to look for: 1. Are you supplying job applicants and employees with the correct version of the federal notice entitled “A Summary of your Rights Under the Fair Credit Reporting Act”?  The government introduced a revised version of this notice on January 1, 2013, but many employers inadvertently continue to use the old format. Here’s how you can tell the difference.  The new version references the Consumer Financial Protection Bureau throughout the notice. The old version references the Federal Trade Commission. Using an outdated federal summary of rights can carry big consequences. One retail employer just agreed to a $3 million settlement in part based upon allegations that it was supplying candidates with an outdated version of this federal notice. 2. Does your background screening consent form (“Disclosure and Authorization”) contain a release of liability?  One plaintiffs’ firm obtained a multi-million dollar settlement based partially on allegations that an employer had included a release of liability in its background screening consent form. It argued that such a release violated the Fair Credit Report Act’s requirement that a background screening disclosure to job applicants and employees “stand alone.” We have seen many companies—including several in the last few weeks—that have release language in their Disclosure and Authorization form. Now is a good time to consider removing it. 3. Do you provide BOTH a pre-adverse action letter and a post-adverse action letter when excluding an individual based upon a background screening report from a third-party vendor, and do those letters contain the correct information?  The Fair Credit Reporting Act requires specific adverse action procedures to ensure that job applicants and employees have an opportunity to identify errors in their background screening reports before an employer rejects them based on those reports. However, it is not unusual for companies to forget these procedures. Several companies have paid more than $2 million dollars in settlements in the last few years based partially upon allegations that the companies had not correctly followed the adverse action process. 4. Do you have a blanket policy that excludes all convicts or felons?  In years past, many employers maintained such a policy. However, the risks associated with doing so have increased tremendously. Only last year the Equal Employment Opportunity Commission secured a $3 million settlement from a major public company on the theory that the company’s broad criminal history policy had a disparate impact on minorities. Since then, the EEOC has issued new guidance suggesting that employers must engage in a multi-faceted analysis before rejecting a candidate or employee based upon a criminal record. Further, several states—including Wisconsin—maintain state laws requiring employers to assess the relationship between a job and conviction before taking adverse action. Under these circumstances, it is important that employers update their background screening policies to reflect changes from the last few years, and consult with counsel before excluding an individual based upon a background screening report.3648c60a-65c4-4831-aae5-db12d1642b18http://dewittross.com/news-education/posts/2013/05/09/how-esop-deals-are-typically-financed employee stock ownership planESOP Deals FinancedESOP BlogHow ESOP Deals are Typically FinancedHow ESOP Deals are Typically FinancedThu, 09 May 2013 18:53:44 Z<iframe width="560" height="315" frameborder="0" src="http://www.youtube.com/embed/vMCY6jAC5_w"></iframe>062e00bc-4a63-4dba-b35d-55deef6bc279http://dewittross.com/news-education/posts/2013/05/09/nlrb-guidance-for-requiring-confidentiality-in-workplace-investigations workplace investigationsNLRBBanner Health Systems Banner Estrella Medical CenterEmployment Law BlogNLRB Guidance For Requiring Confidentiality In Workplace InvestigationsIn July 2012, the NLRB threw a kink in the normal order of business for employers conducting workplace investigations with its ruling in Banner Health Systems d/b/a/ Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012).Thu, 09 May 2013 16:54:22 ZAn employee makes a complaint of harassment in the workplace. His employer arranges for an investigation. The HR representative conducting the investigation instructs the employees she interviews not to talk to other employees about what was discussed. Standard practice, right? Not exactly. In July 2012, the NLRB threw a kink in the normal order of business for employers conducting workplace investigations with its ruling in Banner Health Systems d/b/a/ Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012). The NLRB found that a “generalized concern with protecting the integrity of [a workplace] investigation is insufficient to outweigh” employee rights to engage in concerted activity under Section 7 of the National Labor Relations Act. Therefore, the NLRB held that employers could not maintain or apply a general rule prohibiting employees from discussing ongoing investigations of employee misconduct. Instead, in order to justify a requirement of confidentiality in workplace investigations, employers must first “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.” Banner left employers in a tough spot. They could not rely on a blanket requirement of confidentiality for investigations. At the same time, they had an obligation to prevent and promptly correct any harassment, and confidentiality helps ensure the integrity of a full and complete investigation. What to do? On January 29, 2013, the NLRB issued an advice memorandum that helps answer that question. The memorandum addresses a policy of Verso Paper, a company that operates paper mills across the country. Verso Paper maintained a Code of Conduct that includes a provision prohibiting employees from discussing ongoing investigations. The provision stated: <blockquote> Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination. </blockquote> Unsurprisingly, after Banner, the NLRB found the rule to be overbroad “because the Employer cannot maintain a blanket rule regarding the confidentiality of employee investigations, but must demonstrate its need for confidentiality on a case-by-case basis.” However, the NLRB suggested changes to the Code of Conduct that would remedy the problem for the employer. The first two sentences of the Code of Conduct provision were acceptable to the NLRB; they “lawfully set[] forth the Employee’s interest in protecting the integrity of its investigations.” The remainder of the Code of Conduct provision could be changed, the NLRB suggested, to the following: <blockquote> Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination. </blockquote> In light of this advice memorandum, employers should revisit their written policies to ensure that they do not establish a blanket confidentiality requirement without concern for the particular circumstances of each workplace investigation. Additionally, when a complaint arises and an investigation is necessary, employers should consider and document the factors set forth in Banner in order to determine whether a requirement of confidentiality is warranted. df2336ee-610f-4703-a9f8-06c327ec694dhttp://dewittross.com/news-education/posts/2013/05/08/if-you-have-young-children-you-should-have-a-will young familiesestate planningwillsClient AlertsIf You Have Young Children, You Should Have a WillWhen you’re a parent of young children, planning becomes an essential part of your life. We plan for our child’s birth, birthday parties, play dates, education, and everything else that happens in our daily lives. Our goal with all of our planning is to make sure our kids grow up happy, healthy, and ready for life’s challenges. That’s why there is no excuse for not having a Will and other estate planning documents in place to make sure those same goals are accomplished even if we are not there to see them.Wed, 08 May 2013 14:22:32 ZWhen you’re a parent of young children, planning becomes an essential part of your life.  We plan for our child’s birth, birthday parties, play dates, education, and everything else that happens in our daily lives.  Our goal with all of our planning is to make sure our kids grow up happy, healthy, and ready for life’s challenges.  That’s why there is no excuse for not having a will and other estate planning documents in place to make sure those same goals are accomplished even if we are not there to see them. You might be thinking that you’re too young or don’t have enough money to need an estate plan.  You’re wrong.  There are many reasons to have these documents in place regardless of your age or your wealth.  This article will highlight just a few of them. 1. Who Will Raise Your Children If You Cannot? Who will raise your children if something happens to you and your children’s other parent?  It is probably something you have thought about, and maybe even talked about with family members. Instead of just thinking or talking about it, you should nominate your choice of guardian in your Will.  Without a Will nominating your choice of guardian, a judge who probably does not know your family will choose the person who will raise your children. Just think of all of the possible people a judge could choose to raise your children.  There are probably a few people on that list that you would NOT trust to raise your children. In addition, your choice of guardian may not be the obvious choice among the judge’s available options.  Maybe he or she lives farther away or doesn’t make as much money as some of the other available options.  Maybe it is someone outside of your family entirely.  Maybe a family member looks good on paper but has a completely different style of parenting than you do. Of course, the judge will do his or her best to determine the best interests of the children by talking to family members and close friends before making his or her decision.  But, wouldn’t it be better for the judge to hear it directly from you, the children’s parent?  A judge will generally abide by a parent’s recommendation in a Will, unless there is a very compelling reason not to. In addition, leaving it up to other family members can create a lot of drama, delay and disagreement among the surviving family members at an already difficult time for your children.  If there is a disagreement, litigating the issue before a judge will also consume financial resources that would otherwise be available to support your children.  Even if you think your family members know who you would want to raise your children, it is better to be sure and have it written in a Will. If your choice of guardian changes in the future, you can always amend your Will once it is in place. You can also name a backup if your chosen guardian is unable to serve. 2. Are You Sure Your Child Should Receive His or Her Entire Inheritance at 18? We would all like to believe that if our children received a significant sum of money when they turned 18 years old, they’d be smart and pay for college and save the rest for their future.  However, as former 18 year olds ourselves, we can appreciate that not all 18 year olds would do this.  Without a Will in place, it is more likely than not that your children would receive their entire inheritance on their 18th birthday and there would be no restrictions on how they could use the money.  However, with a Will, you can create a trust that will hold the assets for the benefit of your children until an age that you specify. The trust would only come into effect upon your death (and your spouse or co-parent’s death, if you prefer), so it would not have any effect on how you spend or manage your assets while you are alive.  With a trust, you can also create some restrictions as to how the money can be spent, such as for college.  In addition, you would name a trustee who would manage the assets and oversee how the money is spent.  The trustee could be the same individual you name as guardian, a different individual, or a bank’s trust department.  With a trust, you can be sure that any assets you leave to your children will be used to support them in the way that you would have if you were still around. You can also specify an age or ages when the children should receive all of the assets remaining in the trust, such as 25 or 30, when it is more likely they will use the money responsibly. Many people think that you have to be a millionaire to have a trust.  This is not true.  Most trusts are not created for the Paris Hiltons of the world.  Between life insurance, retirement accounts, your home, and other bank or investments accounts, you may have more assets that would be transferred to your children upon your death than you think. A trust may also be a good solution if you and the children’s other parent are no longer together and you have concerns about his or her ability to manage the assets that the children would receive from you upon your death.  With a trust, the trustee will manage the assets, not the children’s other parent. 3. Other Reasons Why an Estate Plan is Important In addition to the two reasons described above, there are numerous other reasons why having an estate plan in place is important for your family.  For example, did you know that doctors don’t necessarily have to listen to your spouse’s decisions about your health care if you are incapacitated?  Are you in a second marriage, or a same sex relationship?  Do your children have special needs?  All of these considerations can be addressed with proper estate planning.  Without an estate plan, these considerations can lead to unnecessary complications.  Having an estate plan is important for every individual or couple with children, regardless of your age or income. Having a plan in place now will allow you to assure the best possible future for your children. You are likely aware of numerous websites that provide Will forms that you can complete on your own.  Although these forms may seem less expensive at first, they may cause you additional headaches and expense in the long run, because they are not likely to be tailored to your family and your circumstances.  In some cases, they may not be valid or enforceable at all.  It is better to sit down with a professional and develop a plan that suits your family’s particular needs. eb565ed5-ee2c-4246-94a4-5d265774c0c2http://dewittross.com/news-education/posts/2013/05/06/patent-attorney-joe-miotke-quoted-in-kenosha-news Inventors and Entrepreneurs Club of Kenosha and Racinepatent attorneyFirm NewsPatent Attorney Joe Miotke Quoted in Kenosha NewsDeWitt Ross & Stevens S.C. Patent Attorney Joe Miotke was quoted in a Kenosha News article, "Where do I go with my bright idea?"Mon, 06 May 2013 13:03:16 ZDeWitt Ross & Stevens S.C. Patent Attorney <a href="http://dewittross.com/our-people/joseph-miotke">Joe Miotke</a> was quoted in a Kenosha News article, "Where do I go with my bright idea?" Miotke recently presented at the monthly meeting of the Inventors & Entrepreneurs Club of Kenosha and Racine. <a href="http://www.kenoshanews.com/news/where_do_i_go_with_my_bright_idea_471335351.html" rel="nofollow">Read the full article online here</a>.336507a1-ca0f-4753-b477-f6ad9e2157b1http://dewittross.com/news-education/posts/2013/04/30/attorney-jon-axelrod-elected-president-of-the-fellows-of-the-wisconsin-law-foundation FellowsWisconsin Law FoundationFirm NewsAttorney Jon Axelrod Elected President of The Fellows of the Wisconsin Law FoundationAttorney Jon Axelrod was elected president of The Fellows of the Wisconsin Law Foundation.Tue, 30 Apr 2013 19:03:38 ZMADISON — The law firm of DeWitt Ross & Stevens S.C. today announced that <a href="http://dewittross.com/our-people/jon-axelrod">Attorney Jon Axelrod</a> was elected president of <a href="http://www.wisbar.org/aboutus/wisconsinlawfoundation/Pages/Fellows.aspx" rel="nofollow">The Fellows of the Wisconsin Law Foundation</a>. Founded in 1999, The Fellows organization was created to honor members of the State Bar of Wisconsin for significant legal achievements and leadership in their communities. With a majority of the Board voting, Attorney Axelrod was elected on Friday, April 26, with his tenure beginning immediately. Axelrod is a partner in the firm’s Madison office, a member of the Litigation practice group, and he boasts an impressive record of litigation successes. Several of his cases have resulted in landmark decisions in Wisconsin and federal appellate courts, including the United States Supreme Court. His candor and professionalism are well noted in that he was appointed by the Supreme Court of Wisconsin and served for five years on the Board of Attorneys Professional Responsibility, the disciplinary board which regulates the ethical practice of law in Wisconsin. Axelrod received his law degree from the University of Wisconsin Law School. The Fellows’ annual recognition reception and dinner will be held on Thursday, October 3, 2013, at the Nakoma Country Club in Madison. DeWitt Ross & Stevens S.C. is one of the top ten law firms in Wisconsin and the largest Madison based law firm.  It has nearly 90 attorneys practicing in Madison and Metropolitan Milwaukee in a variety of legal areas and has the experience to service clients of all scopes and sizes. The firm is known for its work in several areas, including corporate and family-owned businesses, employment, environmental, employee benefits, government relations, health care, litigation, real estate, tax, estate planning, family law, personal injury, intellectual property, patents, trademarks and copyright law. 321e2397-fdc9-45a5-83d3-389920e6c80dhttp://dewittross.com/news-education/posts/2013/04/26/working-families-flexibility-act-of-2013 WFFAWorking Families Flexibility Act of 2013Employment Law BlogWorking Families Flexibility Act of 2013This month, more than 160 Members of Congress, including all 21 House standing committee chairmen, signed on to co-sponsor the Working Families Flexibility Act of 2013.Fri, 26 Apr 2013 20:10:01 ZThis month, more than 160 Members of Congress, including all 21 House standing committee chairmen, signed on to co-sponsor the Working Families Flexibility Act of 2013 (H.R. 1406), which was originally proposed by U.S. Representative Martha Roby (R-AL) in 2009. The Working Families Flexibility Act of 2013 (WFFA), would permit private sector employers to compensate employees for overtime work by compensatory time off (“comp time”) in lieu of overtime compensation. Currently, only public sector employers have the option to compensate employees with comp time in lieu of overtime compensation. There are some important limitations on both employers and employees under the WFFA.  Some examples include: <ul> <li>Comp time must be offered at a rate not less than one and one-half hours for each hour of employment for which overtime compensation would be required.  </li> <li>For private sector employers that have a labor union, there must be a collective bargaining agreement between the employer and labor organization permitting the use of comp time.</li> <li>For private sector employers that do not have a labor union, there must be an agreement between the employer and the employee, affirmed in writing before the performance of work, that the employee is knowingly and voluntarily entering into the comp time agreement offered by the employer, and that the comp time agreement is not being entered into as a condition of employment.</li> <li>An employee must work 1,000 hours for the employer during a period of continuous employment for 12 months before the date of the agreement or receipt of compensatory time off.</li> <li>An employee may not accrue more than 160 hours of comp time, and if any comp time has not been used by December 31 each year, monetary compensation must be provided to the employee in lieu of comp time. </li> <li>An employer may discontinue a comp time policy with 30 days’ notice to employees, as long as the employer is not prevented from doing so by a collective bargaining agreement.  An employee may withdraw a comp time agreement at any time, and may request, in writing, monetary compensation in lieu of comp time that has not been used.  Further, an employee that resigns or is terminated must be provided with monetary compensation for any unused comp time.</li> <li>Monetary compensation paid in lieu of comp time, shall be paid at the higher of the following rates: (1) the regular rate received by the employee when the comp time was earned, or (2) the final regular rate received by such employee.</li> </ul> Once an employee notifies his/her employer that he/she wishes to use comp time, the employer must provide the employee with comp time within a reasonable period of time, as long as such comp time does not unduly disrupt the operations of the employer.  Proponents of the WFFA believe that comp time allows employees to balance the time demands of family life and work, and provides options for employers who may be economically strained. However, opponents of the WFFA believe that comp time will unfairly reduce the wages employees currently rely on for survival. Currently, the WFFA has not been passed or signed into law. Please stay tuned for further developments on the WFFA. For more information about how the WFFA could affect your employment policies or practices, contact your DeWitt attorney.05ae3b2b-16af-430a-b1e9-1500a5e51fc9http://dewittross.com/news-education/posts/2013/04/26/what-s-brewing-with-esops-volume-ii ESOPcraft breweryDeschutes BreweryESOP BlogWhat’s Brewing with ESOPs Volume IIIn what can now be considered a trend, another craft brewery has announced that it has established an ESOP and made its first contribution of employer stock.Fri, 26 Apr 2013 19:59:46 ZIn what can now be considered a trend, another craft brewery has announced that it has established an ESOP and made its first contribution of employer stock. The brewer is called Deschutes Brewery, and it is the fifth-largest craft brewer in the country. This announcement follows New Belgium Brewing Company’s announcement of establishment of its own ESOP earlier this year (which was a subject of <a href="http://www.dewittross.com/news-education/posts/2013/03/15/what-s-brewing-with-esops-">this ESOP Blog post</a> last month). It is important to note that Deschutes Brewery’s ESOP was established “more to reward the team and to create value than to look at it as an exit strategy,” according to the brewer’s CFO, Peter Skrbek. It will be interesting to see if the trend to implement ESOPs continues in the craft brewing industry.f13c87fa-a087-4996-a063-0e40ccecc371http://dewittross.com/news-education/posts/2013/04/19/pro-esop-legislation-proposed ESOPPrivate Employee Ownership Act of 2013S Corp ESOPESOP BlogPro-ESOP Legislation ProposedOn April 17, 2013, Senator Ben Cardin (D-MD) introduced and co-sponsored a bill called the Promotion and Expansion of Private Employee Ownership Act of 2013. The Bill (S. 742) was co-sponsored by a bi-partisan group of Senators, including Roy Blunt (R-MO), Amy Klobuchar (D-MN), Mary L. Landrieu (D-LA), Pat Roberts (R-KS), Debbie Stabenow (D-MI) and John Thune (R-SD).Fri, 19 Apr 2013 19:41:21 ZOn April 17, 2013, Senator Ben Cardin (D-MD) introduced and co-sponsored a bill called the Promotion and Expansion of Private Employee Ownership Act of 2013. The Bill (S. 742) was co-sponsored by a bi-partisan group of Senators, including Roy Blunt (R-MO), Amy Klobuchar (D-MN), Mary L. Landrieu (D-LA), Pat Roberts (R-KS), Debbie Stabenow (D-MI) and John Thune (R-SD). Senator Cardin released the following explanation for the pro-ESOP legislation: <blockquote> Far too many Americans are inadequately prepared for retirement. Our legislation is about helping workers save by giving businesses the tools they need to create jobs and promote adequate retirement savings. It will strengthen a structure that promotes employee-ownership and helps workers build secure retirements. The bill also empowers businesses with the tools they need to access capital, retain workers, and hire new ones; essential to our continued economic recovery. </blockquote> The legislation is intended to: a) provide more incentives for business owners to sell their businesses to S Corporation ESOPs; b) protect small ESOP-owned businesses from losing their SBA certification when employee ownership of the company expands; and c) affirm the importance of preserving the S Corp ESOP structure in the Internal Revenue Code. The Senators relied, in part, on a study by Alex Brill, a fellow at the American Enterprise Institute and CEO of consulting firm Matrix Global Advisors, called <a href="http://www.esca.us/images/stories/Macroecomic_Impact_of_S_ESOPs_study_4_17_13.pdf" rel="nofollow">Macroeconomic Impact of S ESOPs on the U.S. Economy</a>. The study shows a number of positive effects on the U.S. economy from S Corp ESOPs from an analysis of data through 2010. For example: a) S Corp ESOPs directly employed 470,000 workers and supported an additional 940,000 jobs; b) S Corp ESOPs paid $29 billion in labor income to their own employees, with $48 billion in additional income for supported jobs; c) $93 billion (or 0.6 percent of GDP) came directly from S Corp ESOPs, while output in supported industries totaled $153 billion (or 1.1 percent of GDP); d) Tax revenue initiated by S Corp ESOPs amounted to $11 billion for state and local governments and $16 billion for the federal government.51a3ca85-1050-4901-92e7-417decaa4615http://dewittross.com/news-education/posts/2013/04/11/president-obama-nominates-new-nlrb-members Noel Canning v. NLRBNLRBEmployment Law BlogPresident Obama Nominates New NLRB MembersPresident Obama nominated three candidates to the National Labor Relations Board this week. The candidates include two Republicans, Harry Johnson and Philip Miscimarra, and one Democrat, Mark Pearce, the current NLRB Chairman whose term will expire in mid-August. More information on the nominees is available in the White House press release announcing the nominations.Thu, 11 Apr 2013 20:55:01 ZPresident Obama nominated three candidates to the National Labor Relations Board this week. The candidates include two Republicans, Harry Johnson and Philip Miscimarra, and one Democrat, Mark Pearce, the current NLRB Chairman whose term will expire in mid-August. More information on the nominees is available in the <a href="http://www.whitehouse.gov/the-press-office/2013/04/09/president-obama-announces-more-key-administration-posts" rel="nofollow">White House press release</a> announcing the nominations. The nominations come amidst fallout from a January Court of Appeals decision that invalidated the recess appointments of two of the three current NLRB members. In Noel Canning v. NLRB, the D.C. Circuit held that President Obama exceeded his constitutional authority when he appointed NLRB members Sharon Block and Richard Griffin. This decision left the Board with only one legally-appointed member, and has the potential to invalidate hundreds of decisions issued by the NLRB throughout 2012. The NLRB has announced that it will appeal the decision to the United States Supreme Court. For more information on the ramifications of Noel Canning, <a href="http://www.dewittross.com/news-education/posts/2013/02/12/is-the-national-labor-relations-board-closed-for-business-">see this post</a>. If confirmed, the nominations would provide the NLRB with some stability while Noel Canning is appealed. President Obama has urged the Senate to confirm the nominees quickly, so that the NLRB can continue its work. Meanwhile, the House of Representatives is also dealing with the effects of Noel Canning. The House is preparing to vote this week on the “<a rel="nofollow" href="http://edworkforce.house.gov/uploadedfiles/nlrbappt_02_xml.pdf">Preventing Greater Uncertainty in Labor-Management Relations Act” bill</a>, which would prohibit the NLRB from acting until the Supreme Court issues a decision on the constitutionality of the recess appointments or a Board constituting a quorum is confirmed by the Senate. For more information about how these events affect your business, contact your DeWitt attorney.007ca264-1db6-4ad3-b0ee-542ce2af34e6http://dewittross.com/news-education/posts/2013/04/09/accommodating-nursing-mothers-in-the-workplace Patient Protection and Affordable Care ActFair Labor Standards ActEmployment Law BlogAccommodating Nursing Mothers In The WorkplaceAs most employers know, the Patient Protection and Affordable Care Act amended certain provisions of the Fair Labor Standards Act, effective March 23, 2010. Often overlooked, one amendment requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” That is, employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother.Tue, 09 Apr 2013 22:05:45 ZAs most employers know, the Patient Protection and Affordable Care Act amended certain provisions of the Fair Labor Standards Act, effective March 23, 2010. Often overlooked, one amendment requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” That is, employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The amendment also states that a bathroom, even a private bathroom, is not an acceptable location under the FLSA. The location, however, need not be permanently dedicated to the nursing mother’s use. A room temporarily created or converted into a space for expressing milk or made available when needed is sufficient provided that the space is shielded from view and “free from any intrusion from co-workers and the public.” Employers are not required to compensate breaks taken for the purpose of expressing milk. However, if an employer already provides compensated breaks, an employee who uses that break time to express milk must be compensated the same as other employees. Employers with fewer than 50 employees are not subject to these break time requirements if compliance with the provision would impose an “undue hardship.” Undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. Employers should consider drafting a written policy addressing break time for nursing mothers. The policy should, among other things, include: the employer’s policy regarding break time; designation of private space to express milk; procedures for requesting accommodations; etc. For more information on this issue, contact your DeWitt attorney.2b8873b5-d6f9-498a-aedc-d34fa13ff930http://dewittross.com/news-education/posts/2013/04/09/what-is-the-value-of-your-business- ESOPbusiness saleESOP BlogWhat is the value of your business?Why should a business owner focus more on "after-tax proceeds" of a business sale than on the sales price?Tue, 09 Apr 2013 17:21:49 ZWhy should a business owner focus more on "after-tax proceeds" of a business sale than on the sales price? <iframe width="560" height="315" frameborder="0" src="http://www.youtube.com/embed/AB0Zu12Bd_o"></iframe>4aeda9d3-43dd-4cec-8364-6bd61d7a05fchttp://dewittross.com/news-education/posts/2013/04/05/attorney-jeff-goldman-to-appear-on-googins-anton's-straight-talk-about-money- estate planningtax lawFirm NewsAttorney Jeff Goldman to Appear on Googins & Anton's "Straight Talk About Money"DeWitt Ross & Stevens Attorney Jeff Goldman will be appearing on Googins & Anton's "Straight Talk About Money" radio show conducting an interview about estate planning and the recent tax law changes.Fri, 05 Apr 2013 18:47:35 ZDeWitt Ross & Stevens <a href="http://dewittross.com/our-people/jeff-goldman">Attorney Jeff Goldman</a> will be appearing on Googins & Anton's "Straight Talk About Money" radio show conducting an interview about estate planning and the recent tax law changes. Part one will air April 6, 2013, at 8:30 am on WOZN The Zone 1670 AM and 106.7 FM, and April 7, 2013, at 8:30 am on ESPN Sports Radio 100.5 FM. Part two will air on April 13, 2013, and April 14, 2013, at the same times and stations. If you miss the broadcast, you can listen to the shows on the Googins website: <a href="http://www.googins.com/radio.html" rel="nofollow">www.googins.com/radio.html</a>cdcd1413-a72b-4fe1-9a05-f3ce5433ec38http://dewittross.com/news-education/posts/2013/03/29/if-your-company-is-using-independent-contractors-you-re-probably-doing-it-wrong Wisconsin Unemployment Compensationindependent contractorindependent contractor classificationWorker’s CompensationEmployment Law BlogIf Your Company is Using Independent Contractors, You’re Probably Doing it WrongWith approximately sixty percent of businesses using independent contractors (ICs) and more than 10 million individuals classified as ICs in the workforce (Bureau of Labor Statistics, 2010), it’s rather shocking that only one in four court decisions find that an independent contractor classification is appropriate. With the implementation of the Affordable Care Act, employers with around 50 employees may be considering the use of ICs to avoid health care insurance requirements, but doing so may bring risks.Fri, 29 Mar 2013 19:16:30 ZWith approximately sixty percent of businesses using independent contractors (ICs) and more than 10 million individuals classified as ICs in the workforce (Bureau of Labor Statistics, 2010), it’s rather shocking that only one in four court decisions find that an independent contractor classification is appropriate. With the implementation of the Affordable Care Act, employers with around 50 employees may be considering the use of ICs to avoid health care insurance requirements, but doing so may bring risks. Several factors need to be considered to determine 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 federal and state employment-related statutes. The IC tests under various laws differ, and it is possible for a person to be classified as an employee under one statute and an IC under another. IC classification is especially complex if a company has independent contractors working in multiple states, as the statutes vary from state to state. Although the tests vary, there are some basic concepts that need to be considered when classifying a person as an independent contractor. A contract is absolutely necessary, and language is extremely important when establishing the relationship with an IC. For instance, the use of the word “salary” or the use of a non-compete could jeopardize the IC classification. Other factors affecting classification include direction and control of the IC, who is furnishing the tools/equipment, and if the person has an office or business expenses. Companies need to be aware of each of the 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. According to the IRS, approximately $54 billion in tax revenues are lost annually because of IC misclassification. As the government seeks to decrease the federal deficit, enforcement activity has increased and will continue to do so. For more information about independent contractor classification, contact your attorney or <a href="http://dewittross.com/our-people/stephen-ditullio">Stephen DiTullio</a> at <a href="mailto:sad@dewittross.com">sad@dewittross.com</a> or (608) 252-9362.99475afd-434b-426c-835b-11d2103f9c4bhttp://dewittross.com/news-education/posts/2013/03/29/i-spy-a-new-i-9 Department of Homeland SecurityEmployment Eligibility Verification Form I-9I-9Employment Law BlogI Spy a New I-9In early March of this year, the United States Department of Homeland Security released an updated Employment Eligibility Verification Form I-9. Employers are required to use this updated form in limited contexts right now, including employment reverifications and rehires. Beginning May 7, 2013, employers will need to use the updated form in all situations, including for new hires.Fri, 29 Mar 2013 16:10:59 ZIn early March of this year, the United States Department of Homeland Security released an updated Employment Eligibility Verification Form I-9. Employers are required to use this updated form in limited contexts right now, including employment reverifications and rehires. Beginning May 7, 2013, employers will need to use the updated form in all situations, including for new hires. Among other changes from the previous version, the new Form I-9 contains expanded instructions and has been increased in size to two pages – the first page to be completed by employee/applicants, the second by employers. In addition, the form contains additional fields for e-mail address, telephone number and foreign passport. The new Form I-9 can be found at <a href="http://www.uscis.gov/files/form/i-9.pdf">http://www.uscis.gov/files/form/i-9.pdf</a>. If you have any questions about the new Form I-9 or its use, feel free to contact your DeWitt employment attorney.9d108e74-70c6-44b4-8e3d-8e80729caf8ehttp://dewittross.com/news-education/posts/2013/03/26/why-esops-are-good-for-america ESOPesop retirement planqualified retirement plansESOP BlogWhy ESOPs are Good For AmericaAs has been mentioned in this space before, some opponents of ESOPs claim that they are problematic because of the “eggs in one basket” theory: having too much of one’s retirement plan savings in one place is never a good idea. However, the data actually show that ESOP investments have performed better over the past 35 years than any other qualified retirement plan investments. The following excerpt from a letter to the House Ways and Means Committee’s Tax Reform Task Force (from J. Michael Keeling of The ESOP Association) describes this phenomenon:Tue, 26 Mar 2013 20:35:47 ZAs has been mentioned in this space before, some opponents of ESOPs claim that they are problematic because of the “eggs in one basket” theory: having too much of one’s retirement plan savings in one place is never a good idea. However, the data actually show that ESOP investments have performed better over the past 35 years than any other qualified retirement plan investments. The following excerpt from a letter to the House Ways and Means Committee’s Tax Reform Task Force (from J. Michael Keeling of The ESOP Association) describes this phenomenon: <blockquote> </blockquote> "Thirty-five plus years of data by reputable experts in retirement savings is very convincing that ESOPs provide, in the vast majority of instances, assets that are better than other employer-sponsored retirement plans. (See the attachment to this document summarizing and citing fully these studies about the retirement benefits provided to employees participating in an ESOP.) In brief, data in some instances have the average ESOP account balance at nearly $200,000 per participant compared to the $75,000 range of other defined contribution plans. Even more impressive is studies indicate that it is the nature of most employers that sponsor an ESOP to have an additional retirement savings plan for its employees, usually a 401(k) plan, whereas sadly over half of American employees have no, none, zero, retirement savings plan where they work." <blockquote> </blockquote> <a rel="nofollow" href="http://www.esopassociation.org/docs/default-source/esop-bulletin-docs/click-here.pdf?sfvrsn=0">The full letter (and attachments referenced in the paragraph above) can be read here</a>. Interestingly, the letter also points out that, because ESOP companies were 4 times less likely to lay off employees during the “Great Recession of 2010” (at a rate of 2.6% vs. 12.1% for non-ESOP companies in 2010), that the ESOP companies saved the federal government $14.5 billion in unpaid unemployment compensation benefits and collected employment taxes in 2010. This savings is more than 7 times the estimated $2 billion tax expenditure attributed to special laws promoting ESOP promotion and operation.46008749-60e7-482e-9271-7f26028be873http://dewittross.com/news-education/posts/2013/03/19/smart-pto-policies-pay-off-for-employers terminationPTOpaid time offEmployment Law BlogSmart PTO Policies Pay Off For EmployersUnder Wisconsin law, employers must generally pay out vacation pay (“PTO”) at separation. However, companies may avoid doing so where they have a written policy to the contrary.Tue, 19 Mar 2013 20:30:10 ZUnder Wisconsin law, employers must generally pay out vacation pay (“PTO”) at separation. However, companies may avoid doing so where they have a written policy to the contrary. As a result, every Wisconsin employer ought to work with an employment attorney to develop a PTO policy that allows them to withhold PTO in some or all circumstances at termination. Note that many companies require employees to transition in a professional manner in order to receive a PTO payout. For example, some state that an employee will only receive a PTO payout if he or she provides two weeks’ notice before resigning. Others state that an employee will only receive a PTO payout if he or she is not terminated for cause (with cause being determined in the employer’s sole discretion). Because employers have wide flexibility on this issue, the key is to think strategically. 44fd2750-94e2-4019-bd8c-7146782b5031http://dewittross.com/news-education/posts/2013/03/15/what-s-brewing-with-esops- brewery ESOPNew Belgium Brewing ESOPESOP BlogWhat’s Brewing with ESOPs?New Belgium Brewing (out of Ft. Collins, CO and maker of Fat Tire Amber Ale, among other micro-brews) announced in early 2013 that it become 100 percent ESOP-owned. New Belgium is the 3rd largest micro-brewer in the U.S. and has over 450 employee-owners. The company actually started its ESOP in 2000, and has gradually sold more and more shares to the ESOP, with the last installment happening before the end of 2012.Fri, 15 Mar 2013 17:09:29 ZNew Belgium Brewing (out of Ft. Collins, CO and maker of Fat Tire Amber Ale, among other micro-brews) announced in early 2013 that it become 100 percent ESOP-owned.  New Belgium is the 3rd largest micro-brewer in the U.S. and has over 450 employee-owners.  The company actually started its ESOP in 2000, and has gradually sold more and more shares to the ESOP, with the last installment happening before the end of 2012. <a href="http://blog.seattlepi.com/washingtonbeerblog/2013/01/15/one-more-reason-to-like-new-belgium-brewing-%E2%80%93-now-employee-owned/" rel="nofollow">This article describes</a> how the culture of employee ownership has affected the growth of the company and how the company’s leaders expect that culture to continue as New Belgium Brewing expands.  With the success of the company and the tax advantages available to ESOP companies, New Belgium is adding a facility in Asheville, NC and about 150 new employees.a7dd4953-4ce2-4c7e-af33-9613415a46d1http://dewittross.com/news-education/posts/2013/03/13/schoenfeld-named-a-top-100-trial-lawyer-in-wisconsin-for-the-fifth-year Firm NewsSchoenfeld Named a Top 100 Trial Lawyer in Wisconsin for the Fifth YearThe Madison and Milwaukee based law firm of DeWitt Ross & Stevens S.C. today announced that Howard B. Schoenfeld was again named as one of the top 100 trial lawyers in Wisconsin by The National Trial Lawyers. This is his fifth year of inclusion on the list.Wed, 13 Mar 2013 19:59:03 ZMILWAUKEE — The Madison and Milwaukee based law firm of DeWitt Ross & Stevens S.C. today announced that <a href="http://dewittross.com/our-people/howard-schoenfeld">Howard B. Schoenfeld</a> was again named as one of the top 100 trial lawyers in Wisconsin by <a rel="nofollow" href="http://thenationaltriallawyers.org/">The National Trial Lawyers</a>. This is his fifth year of inclusion on the list. A University of Wisconsin Law School graduate, Schoenfeld has an established track record of winning for over thirty years in both state and federal court. His litigation expertise includes civil rights, complex business and construction litigation, as well as personal injury and professional liability litigation. Membership in The Association is by invitation only and is extended only to those attorneys who exemplify superior qualifications, trial results, leadership, influence, and reputation in the community of trial lawyers as viewed by members of the bench, members of The National Trial Lawyers, the public, and other trial lawyers. The National Trial Lawyers is a professional organization which includes America’s top trial lawyers. Its purpose is to offer practical educational programs, networking opportunities and legal publications to its members about current issues facing trial lawyers. DeWitt Ross & Stevens S.C. is one of the top ten law firms in Wisconsin and the largest Madison based law firm. It has nearly 90 attorneys practicing in Madison and Metropolitan Milwaukee in a variety of legal areas and has the experience to service clients of all scopes and sizes. The firm is known for its work in several areas, including corporate and family-owned businesses, employment, environmental, employee benefits, government relations, health care, litigation, real estate, tax, estate planning, family law, personal injury, intellectual property, patents, trademarks and copyright law.20c5dca5-a425-4f0e-841b-2fd73f5fe666http://dewittross.com/news-education/posts/2013/03/12/are-you-about-to-get-zeroed-in-on-by-the-eeoc- lilly ledbetterstrategic enforcement planEEOCharassmentbackground checksEmployment Law BlogAre you about to get zeroed in on by the EEOC?Last December, the United States Equal Employment Opportunity Commission laid out its Strategic Enforcement Plan (an SEP, for short) for the next three years (2013 through 2016). The SEP has several priorities you’ll want to be aware of. Check them out to see if your company is vulnerable.Tue, 12 Mar 2013 16:33:03 ZLast December, the United States Equal Employment Opportunity Commission laid out its Strategic Enforcement Plan (an SEP, for short) for the next three years (2013 through 2016). The SEP has several priorities you’ll want to be aware of. Check them out to see if your company is vulnerable: <ul> <li>Do you perform background checks on applicants? If so, be aware that class-based recruiting and hiring is on the top of the list for the EEOC. That means an increase in discrimination claims under Title VII based on criminal background checks.</li> <li>Do you employ immigrants or migrant workers? Coming soon to an EEOC branch near you, the EEOC is targeting efforts to assist “vulnerable workers” unaware of their rights under Title VII, in regard to disparate pay, job segregation, harassment, trafficking and other discriminatory policies.</li> <li>Remember Lilly Ledbetter? You should; she’s about to become a household name again. In 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009, as well as creating a National Equal Pay Enforcement Task Force. The EEOC has announced its intent to further its efforts to eradicate compensation discrimination in the U.S. workforce. And the EEOC isn’t messing around; it has trained thousands of intake workers on how to identify, investigate and remediate pay discrimination.</li> <li>Want to terminate the chronic complainer? Be careful. The EEOC’s broad and sometimes over-reaching enforcement of anti-retaliation laws is its best method for preserving access to the legal system and laws it enforces. So it comes as no surprise that it intends to focus its efforts on increasing the enforcement of these laws.</li> <li>Guess what? Harassment is still illegal. The EEOC’s approach to anti-harassment initiatives is not new. We have seen this priority in the past, but it appears that the Commission intends to add another outreach campaign to deter workplace harassment. </li> <li>And the catch-all: “Addressing Emerging and Developing Issues.” This category is ambiguous as can be, leaving much room to expand its list of national priorities as it sees fit.</li> </ul> Interested in hearing more? Feel free to follow up with me via email and I'll fill you in.4b0a4e52-9daa-414f-9243-f5b597a2ef1ehttp://dewittross.com/news-education/posts/2013/03/08/don't-forget-post-new-fmla-poster-today FMLA posterEmployment Law BlogDon't Forget: Post New FMLA Poster TodayAs we mentioned in a previous post, employers must post a new FMLA poster in their workplace as of today, March 8, 2013.Fri, 08 Mar 2013 19:41:28 ZAs we mentioned in a previous post, employers must post a new FMLA poster in their workplace as of today, March 8, 2013.  <a href="http://www.dewittross.com/news-education/posts/2013/02/13/dol-revises-fmla-regulations-and-requires-use-of-new-workplace-poster">See our discussion here</a>.43973d0c-fde8-4d5c-a573-c50f87a97c3ehttp://dewittross.com/news-education/posts/2013/03/08/bill-introduced-to-limit-use-of-credit-checks Equal Employment For All ActFCRAFair Credit Reporting Actcredit checksEmployment Law BlogBill Introduced to Limit Use of Credit ChecksBill Introduced in U.S. House of Representatives Would Prohibit the Use of Credit Reports Against Prospective and Current Employees For Employment Purposes.Fri, 08 Mar 2013 19:30:36 ZBill Introduced in U.S. House of Representatives Would Prohibit the Use of Credit Reports Against Prospective and Current Employees For Employment Purposes. On February 13, 2013, Representative Steve Cohen (D-TN) introduced H.R. 645, the “Equal Employment For All Act.” The legislation seeks to amend the Fair Credit Reporting Act (“FCRA”) to prohibit employers from using consumer credit checks to deny employment to prospective employees or to take adverse action against current employees. The prohibition would apply even if the prospective or current employee consented or otherwise authorized the procurement or use of the credit report.  The only exceptions under the proposed legislation would be for: (i) positions requiring national security or FDIC clearance; (ii) positions with a state or local government agency otherwise requiring a credit report; or (iii) “supervisory, managerial, professional, or executive” positions in financial institutions.  The FCRA presently sets forth specific procedures for employers to follow if they plan to take adverse action based on a credit report.  If enacted, this proposed legislation would prohibit the use of credit reports altogether when taking adverse actions outside of a few exceptional circumstances.  Even absent the enactment of this legislation, however, employers should be particularly cautious about using credit reports. At present, eight states (Vermont, California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington) have already passed laws restricting the use of credit reports for employment purposes. In addition, the EEOC is increasingly scrutinizing such use of credit reports. The bill is presently before the House Committee on Financial Services, two members of which are representatives from Wisconsin: Sean Duffy (7) and Gwen Moore (4). The bill also currently has 29 cosponsors, including representatives from Illinois, Minnesota, Indiana, and Michigan. The text of the bill, and its current status, <a rel="nofollow" href="http://thomas.loc.gov/cgi-bin/bdquery/z?d113:h.r.00645:">can be viewed here</a>.801f236f-2136-43ee-909c-3408f3e16e98http://dewittross.com/news-education/posts/2013/03/08/an-esop-often-portends-a-business-owner-s-legacy ESOP succession planningESOP BlogAn ESOP Often Portends a Business Owner’s LegacyThe common traits for business owners who choose an ESOP over other succession planning options.Fri, 08 Mar 2013 19:01:58 ZThe common traits for business owners who choose an ESOP over other succession planning options. <iframe width="560" height="315" frameborder="0" src="http://www.youtube.com/embed/GGBgr4lsDJs"></iframe>216b2513-6042-4468-9982-3819c0541cabhttp://dewittross.com/news-education/posts/2013/03/05/employers-get-a-breath-of-fresh-air Seventh Circuit Court of AppealsEspenscheid et al v DirectSat USA LLCEmployment Law BlogEmployers Get a Breath of Fresh AirThe Seventh Circuit Court of Appeals’ recent decision in Espenscheid, et al. v. DirectSat USA, LLC, et al., No. 12-1943 (7th Cir. Feb. 4, 2012) could finally help to stem the tide of wage and hour class and collective actions. Tue, 05 Mar 2013 19:36:24 ZThe Seventh Circuit Court of Appeals’ recent decision in Espenscheid, et al. v. DirectSat USA, LLC, et al., No. 12-1943 (7th Cir. Feb. 4, 2012) could finally help to stem the tide of wage and hour class and collective actions. In Espenscheid, the Seventh Circuit affirmed the decision of the Western District of Wisconsin and rejected class and collective action certification in a major state and federal wage action.   The Seventh Circuit emphasized that there was simply too much variation among the putative class members to handle their claims in a single case.  According to the Seventh Circuit, proper resolution of the case would have required over 2,000 separate evidentiary hearings on damages, eliminating any efficiencies to be gained from a class or collective action.  Importantly, Plaintiffs’ attorneys had promoted the same justification for class and collective actions that many of their peers had used in the past:  representative testimony.  According to Plaintiffs, 42 “representatives” could provide evidence as to the group’s damages.  The Seventh Circuit refused to accept this notion, however, explaining that each person’s claims were too individualized.  The Seventh Circuit noted: 1. There was insufficient evidence that all 2,000+ employees did “roughly the same amount of work, including the same amount of overtime work, and had been paid the same wage;” 2. Some of the employees underreported their hours in an effort to impress the company with his/her efficiency in order to obtain a promotion or to avoid being laid off; and 3. The employees had not kept records of the amount of time they worked but did not report on their timesheet. This decision is great news for employers for several reasons.  First, it may discourage plaintiffs’ attorneys from filing large class action and collective action wage suits.  Second, it provides employers with a good defense to defeat class action or collective action law suits.  Third, it lowers the risk that employers will have to settle cases simply to avert the risk associated with a large lawsuit.  In summary, this case provides employers a significant “win” in their effort to limit wage suit exposure.  For more information about how this decision could affect your employment policies or practices, contact your DeWitt attorney.