Oct. 21, 2015 – Federal courts, Wisconsin courts, the EEOC, and the Wisconsin Legislature have all been busy defining and refining employment law. No lawyer and no employer can expect to know it all, all the time.
With the release of the 2015 supplement to the fifth edition, State Bar of Wisconsin PINNACLE’s Wisconsin Employment Law gives you the most up-to-date information to help you guide your clients through the 21st century employment environment.
Know the Correct Answers
Here are a few questions your business clients may ask you, based on scenarios identified in the 2015 supplement. You may think you know the answers, and maybe you do, but some may surprise you (and make you glad you have the book at hand).
Q. My clients are three physicians in a service corporation. They are being sued by another physician, a former full partner, for discrimination under Title VII of the Civil Rights Act of 1964. Can she do that?
A. Not in the Seventh Circuit. That court of appeals has held that if a shareholder was a full partner, she was not an employee, even if she was usually in the minority on votes. Because she was not an employee, she is not protected by the Act.
Q. My client has an employee believed to be making disparaging remarks about the company on the employee’s personal Internet account. Can we demand that he let us to see what’s in his personal account?
A. Not directly. Wisconsin has enacted a statute, section 995.55, that prohibits employers from demanding such access and prohibits them from disciplining an employee for exercising the right to refuse. But nothing in the statute prohibits an employer from monitoring its own computer system, and there is nothing to stop an employer from observing any publicly available information.
Q. I represent a hospital with an employee, an ER nurse, who has a medical condition that requires her to be absent more often than she is present. Her attorney tells me that under the ADA we must make extensive attendance policy allowances for that. Is that right?
A. Probably not. In a case nearly on point, the Ninth Circuit affirmed summary judgment against a neo-natal nurse whose fibromyalgia caused her to exceed the number of unplanned absences from her position. She too demanded an exception to the attendance policy, but didn’t get it. As the appellate court noted, “[t] he common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse.” That would likely be even more so with an ER nurse.
Q. My potential client had entered a manager-training program for her employer but was harassed and belittled because of her gender, until she finally dropped out. We want to bring a sex discrimination claim. Is it feasible?
A. Probably. The Seventh Circuit has recently acknowledged the viability of a “constructive demotion” action under Title VII, which would follow the same structure as the more traditional “constructive discharge.” That is, the claimant has to show both that working conditions at the program were so intolerable that she had to drop out, and that the conditions became intolerable because of discrimination.
Q. I’ve been approached by several employees of a temporary help agency. They have to go through a fairly extensive anti-theft security screening after they clock out of the warehouse where they’re working. They don’t get paid for that time, and they think they should. Looking at FLSA, I’m inclined to agree. What’s the law on that?
The U.S. Supreme Court says no pay. According to the Court, because those screenings are not what the workers are employed to do, that is, they are not “integral and indispensable” to the job, the screenings are “postliminary” and that time is not compensable. And there’s no point in arguing that the screening takes an inordinately long time. According to the Court, “[t]he fact that an employer could conceivably reduce the time spent by employees on any ... postliminary activity does not change ... its relationship to the principal activities that an employee is employed to perform.”
Wisconsin Employment Law Is Your Time-Tested Source for Answers to Questions Like These, and Many, Many More
Wisconsin Employment Law has long been the go-to source for practical and timely information on this complex and critical practice area, addressing both Wisconsin and federal employment law. As with all PINNACLE products, Wisconsin Employment Law is objective, neutral, and balanced, exploring both employer and employee perspectives, addressing employee claims as well as employer defenses.
The print edition of Wisconsin Employment Law is available to members for $219, plus tax and shipping. Print purchasers who subscribe to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular update price. Visit the WisBar Marketplace to order the print edition.
Annual subscriptions to the electronic Books UnBound start at $149 per title and $769 for the full Books UnBound library (single-user prices; call for firm pricing). Current full-library subscribers to Books UnBound automatically receive these updates. Visit the WisBar Marketplace to order the Books Unbound edition.
For more information, contact the State Bar at (800) 728-7788 or (608) 257-3838.