Blogs

Attorneys and law students this spring gave presentations in Madison to help educate the incoming workforce. Naomi Swain gives an overview of some local efforts to educate students on their employment rights.

Muldrow v. City of St. Louis relaxed the requirements for demonstrating “harm” in Title VII discrimination cases. Martin C. Kuhn examines Muldrow’s impact on such cases in the Seventh Circuit, including those cases where courts have declined to apply or extend Muldrow.

Wisconsin’s prohibition on discrimination based on an employee’s use of lawful products complicates employer drug testing for marijuana. John Chick offers advice to attorneys on both the management and plaintiff sides when handling cases involving legal use of products that may trigger a positive drug test.

In 2011, Act 10 stripped away most collective bargaining rights from public sector labor unions, but a new case seeks to have it blocked. Martin Kuhn explores the history of Act 10 and offers insight on what may be next.

The Equal Employment Opportunity Commission recently issued its final enforcement guidance on unlawful workplace harassment. Kate O’Malley discusses noteworthy updates between the proposed and the final guidance documents on sex-based harassment and on free speech and religious views.

Wis. Stat. section 102.35(3) provides a penalty of up to one year’s wages for employers who fail to rehire injured workers where suitable work is available within their restrictions. Naomi Swain discusses the elements necessary for such a claim and important practice points for counsel.

A recent decision by the National Labor Relations Board impacts rights under Section 7 of the National Labor Relations Act. Peter Albrecht discusses how the general counsel and the NLRB carefully orchestrated the expansion of Section 7 rights.

In a recent decision, a NLRB regional director ruled that Dartmouth men’s basketball team members are considered employees under the National Labor Relations Act. Carmen L. Lopez discusses the decision as well as other developments surrounding this issue.

The Occupational Safety and Health Administration (OSHA) is the most likely venue for filing or defending a whistleblower claim. Will Kramer offers tips to ensure the best representation for your client.

The Equal Employment Opportunity Commission has not updated its enforcement guidance on unlawful workplace harassment in over two decades – and now offers a proposed update. Kate O’Malley discusses the changes the proposed guidance may bring.

Yes, terminated employees may still be eligible to claim short- and long-term disability benefits. Naomi Swain answers questions about when an employee may access disability insurance coverage after they leave employment.

In a recent decision, the National Labor Relations Board made it easier for unions to establish majority support without conducting a Board-supervised secret-ballot election. Peter L. Albrecht discusses the NLRB’s decision in Cemex Construction Materials.

The work-from-home revolution has proven it is here to stay. Brandon Jubelirer discusses how the Wisconsin Worker’s Compensation Act approaches compensability for at-home work injuries.

A recent appeals court decision addresses how much notice an employer must receive from an employee before initiating the reasonable accommodation process. Storm B. Larson, Jennifer S. Mirus, Douglas E. Witte, Brian P. Goodman discuss the decision andimplications for employers.

When a person possesses two or more characteristics that together result in discrimination, that is intersectional discrimination. Scott Small discusses intersectional discrimination theory and how it applies to claims under the Wisconsin Fair Employment Act.

With COVID-19 Form I-9 flexibilities now ended, employers must physically inspect all I-9 documents that had been remotely inspected during the pandemic. Samantha Bethel details how in-person Form I-9 inspections should be handled.

The National Labor Relations Board has issued a decision making it more difficult for employers to discipline employees for outbursts and similar misconduct while employees are engaged in protected concerted activity under Section 7 of the National Labor Relations Act.

DEIA initiatives improve employee recruitment, retention, and morale, and help mitigate risks associated with potential disparate treatment and discrimination claims by employees. Melissa Caulum Williams, Erik Eisenmann, and Michael Matta outline howemployers can avoid legal risks regarding DEIA programming without having to compromise their commitment to DEIA.

The general counsel for the National Labor Relations Board is looking to revive abandoned precedent to make organizing easier for unions. Peter Albrecht discusses the nature and impact of the general counsel’s desire to reinstate the Joy Silk doctrine.

The Federal Trade Commission recently announced a proposed rule that would eliminate non-compete agreements nationwide. Martin Kuhn discusses the proposed rule, its potential benefits for workers, and its potential legal challenges.

A proposed FTC rule would ban non-compete clauses for many employees. Troy Thompson and Christopher Toner discuss the details of the proposed rule, and say that it would significantly increase employee mobility presently limited by lawful non-compete clau

Now signed into law, the Speak Out Act prohibits the enforcement of certain non-disclosure and non-disparagement provisions involving disclosure of sexual assault or harassment disputes in the workplace. Quinn Stigers and Randall Thompson discuss the Actand its potential impact on employers.

Wisconsin courts recently scrutinized whether restrictive covenants, including confidential information provisions, are narrowly drawn so as to be enforceable under Wis. Stat. section 103.465. Matthew DeLange discusses the impact of the Diamond Assets, LLC v. Godina decision on Wisconsin’s restrictive covenant law.

National Labor Relations Board has a significant impact on employers and employees in nearly every private sector. John Rubin provides an overview of some of the most significant developments at the NLRB so far in 2022.

It is important that employers ensure workplaces are inclusive of neurodiverse and ability diverse employees. Catarina Colón offers tips on best practices to ensure neurodivergent and individuals with disabilities are provided equal and fair opportunities in the workplace.

In a post-Dobbs workplace, employers may have to make adjustments to accommodate their employees with an unwanted pregnancy, and employees may face new, unsettling avenues for discrimination. Emma Ferguson outlines some of the ways Wisconsin’s return to a lack of access to safe and legal abortions is likely to impact the workplace.

The COVID-19 pandemic greatly impacted unemployment in Wisconsin. Brenda Lewison discusses that impact and offers practice tips for attorneys who represent clients with unemployment overpayment investigations.

Can an employee in a virtual environment be harassed? Erik Eisenmann, Catarina Colón, and Tracey O’Brien discuss the new “world” of online workplace environments and the consequences of cyberbullying and harassment.

The new general counsel at the National Labor Relations Board is embarking on an aggressive campaign to overturn pro-employer precedents. Peter Albrecht provides an overview of some of the changes that could be important to both management and labor.

A Madison ordinance prohibits employers from discriminating against employees based on political beliefs. Where pandemic precautions have become highly politicized, employers and employees should consider the ramifications, says Patrick O’Connor.

While the litigation surrounding the Occupational Safety and Health Administration's (OSHA) vaccine and testing emergency temporary standard continues, employers should nevertheless be ready to implement these standards. Janelle Schlosser discusses what employers need to know for their implementation.

A recent Occupational Safety and Health Administration notice requires that employers mandate that their employees either obtain a COVID-19 vaccination or undergo periodic COVID tests. Tom O’Day and Bethesda Zewdie review whether employers will be required to pay for COVID testing for employees who are not vaccinated.

A recent National Labor Relations Board announcement updated guidance on whether student athletes at academic institutions are considered employees with the right to organize. John Rubin discusses the new guidance and gives practical suggestions for academic institutions in light of the announcement.

OSHA recently updated its guidance for COVID-19 prevention plans in the workplace. Janelle Schlosser discusses the new guidance and outlines six of its recommendations.

In a recent Notice of Proposed Rulemaking, the U.S. Department of Labor proposed further changes to for tip regulations, an area that has been in flux for years. Justin Brewer provides an update on what’s going on with the 2020 Final Tip Rule.

Claims for ERISA disability insurance benefits due to COVID-19-related disabilities are heavily scrutinized by plan administrators and insurance companies, often resulting in their denial. Jessa Victor discusses how to best navigate claims for such benefits, including those based on an employee’s inability to work due to the pandemic.

To create safer workplaces, some employers are offering cash bonuses to employees who get the COVID-19 vaccine. Yingtao Ho discusses whether such bonuses may increase the employee’s liability for overtime pay.

As workplaces open up after pandemic closures, COVID-19 long-haulers re-entering the workforce face new challenges. Summer Murshid discusses the challenges for employees as well as those faced by their employers.

Employers using a tip credit or tip pool under the Fair Labor Standards Act (FLSA) are now subject to new regulations. Jordan Rohlfing discusses recent changes to the regulations and offers recommendations for employers.

Wisconsin’s unemployment hearing backlog seems overwhelming, and the low win rate could mean financial catastrophe for claimants, says Victor Forberger. Lawyers are needed to help them –here is where and how to get involved.

The Seventh Circuit recently indicated an interest in addressing the standard of causation for disparate treatment claims under the ADA. Storm Larson discusses Seventh Circuit precedent and variations among other circuits on the issue.

The Consolidated Appropriations Act 2021 did not extend the Families First Coronavirus Response Act (FFCRA), but the FFCRA can still impact an employee's leave. Nicole Stangl discusses what employers should know regarding the FFCRA in 2021.

With COVID-19 vaccinations now available, employers may want to implement a mandatory vaccine policy within their organization. Janelle Schlosser reviews the risks for employers related to mandatory vaccine policies in the workplace.

Since 2004, the Seventh Circuit has recognized three forms of associational disability discrimination. Storm Larson discusses a recent decision that indicates the Seventh Circuit may be open to new theories of associational disability discrimination.

The U.S. Supreme Court recently ruled that federal law prohibits employers from discriminating against gay, lesbian, and transgender employees in workplaces. Hayley Archer discusses the case, its potential implications, and what it means for employees in Wisconsin.

A recent rule proposed by the U.S. Department of Labor would make it easier to classify workers as independent contractors under the Fair Labor Standards Act. Lida Bannink discusses the proposed rule and its implications.

The COVID-19 pandemic has prompted guidance changes for employers regarding personal protective equipment (PPE) and respirator use by employers. Janelle Schlosser outlines what employers need to know about new OSHA guidelines for PPE use.

Almost all Wisconsin workers are entitled to worker’s compensation benefits when they are injured at work and their injury requires medical treatment, including undocumented workers. Aaron Halstead discusses the benefits available to undocumented workers in Wisconsin.

Law firms, like all employers, have been inundated with advice and guidance for reopening their workplaces in the wake of the COVID quarantine. Jane Clark, Sheila Conroy, and Hannah Renfro provide guidance on reopening your office in a manner thatprotects your employees and clients, as well as your bottom line.

As the state opens up from stay-at-home orders, Wisconsin employers prepare for an increase in claims from pandemic job losses. Keith Kopplin and Christina Wabiszewski highlight five key differences in Wisconsin and federal employment laws that employers should know to reduce liability.

With cold and flu season in full swing and increasing reports of coronavirus, what are an employer’s obligations? Erica Reib provides tips for employers to consider when planning for an emergency.

Even with a recent U.S. Supreme Court victory, Epic Systems Corporation could still be paying hefty damages for misclassifying employees as exempt from overtime – and Epic is not alone. Jennifer Mirus and Brian Goodman discuss properly classifying employees as exempt from overtime in the context of recent rulings.

Over the last few years, noncompete agreements have been popping up in contexts where they are not permissible. Marianne Goldstein Robbins and Joe Sexauer discuss the specifics of noncompete agreements in Wisconsin and federal law, and how to address their overuse.

The Seventh Circuit Court of Appeals recently ruled that extreme obesity, by itself and alone, does not constitute a disability under the Americans with Disabilities Act. Dean Dietrich discusses the issue, saying that employers must be careful about perceiving an individual who is extremely obese from being considered impaired or in some way unable to perform assigned duties.

National Labor Relations Board recently announced a new and easier framework for employers to withdraw recognition of a union representing its workforce. Kevin Terry discusses the case of Johnson Controls, Inc., and its anticipated effect.

Proper preparation can help you maximize results for your clients during their mediation session. Jill Sopha shares her favorite tips for advocates in mediation.

The Social Security Administration recently announced that it will again be sending “no-match” letters. Jerome Grzeca discusses the announcement and advises that employers develop policies to address any such issues with their employees in a lawful andnon-discriminatory manner.

When employers engage third parties to conduct background checks on job applicants, they must be certain to follow their obligations under the Fair Credit Reporting Act and similar state laws or they may open themselves up to liability. Meg Vergeront discusses employer obligations when conducting a background check through third-party investigators.

In the #MeToo era, employees are still faced with substantial challenges when bringing claims of sexual harassment in federal court. Katherine L. Charlton discusses a recent court of appeals case decision that is a reminder of the importance of documentation.

The NLRB recently invited, then disinvited, people to give their thoughts on the Staunton holding – the case that allows construction employers and unions to convert National Labor Relations Act Section 8(f) agreements into Section 9(a) agreements into Section 9(a) agreements. Patrick Whiting takes a look at what Staunton established, and what could result if its holding is overturned.

Health care whistleblowers must walk a fine line in determining which materials can be taken from an employer as evidence of False Claim Act qui tam claims. Guest authors Stacy Gerber Ward and Nola Hitchcock Cross of the State Bar of Wisconsin Health Law Section discuss guidelines governing the relationship between a health care provider and employees who are potential whistleblowers.

From her roles as president of Madison Teachers Incorporated, alder and mayor of Madison, commissioner on the Wisconsin Employment Relations Commission, and now as mediator and arbitrator, Sue Bauman has made an impact on the practice of law in Wisconsin. Learn more about Bauman’s career as she finishes her term as chair of the Labor & Employment Law Section.

How do you determine if a particular case is a good candidate for mediation? The answer goes well beyond the legal substance and merits of the case, says Jill Hamill Sopha, who discusses key questions lawyers should consider when deciding whether to mediate.

Employment lawyers Caitlin Madden and Sean Scullen discuss a recent Wisconsin-based case decided by the U.S. Supreme Court that may have far-reaching effects on employment litigation.

Guest blogger Adam J. Tutaj of Meissner Tierney Fisher & Nichols S.C. provides “real dollar” examples of how differing settlement allocations may affect the taxation of employment claim settlements.

A recent U.S. Supreme Court Order leaves intact the Seventh Circuit’s holding that “reasonable accommodation” is limited to measures that enable a person to work under the Americans with Disabilities Act. David McClurg discusses the case, the Order, and its implications for employers.

The Sixth Circuit Court of Appeals recently became the first federal appellate court to recognize that discrimination in employment of a transgender employee is sex discrimination under Title VII of the Civil Rights Act of 1964. Katherin Charlton discusses the decision and its possible impact in Wisconsin.

Given that nearly all employment disputes resolve short of trial, it is never too early for an employment lawyer to consider mediation, writes Jill Sopha. Just what does it take to reach a resolution when an impasse looms?lawyer consider mediation, writes Jill Sopha.

Changes in interpretation of National Labor Relations Board case law that began with the appointment of Chairman Philip Miscimarra are expected to continue under John Ring, nominated by President Trump to succeed Miscimarra. Chuck Pautsch discusses the recent case law changes and what to expect in the future.

The U.S. Supreme Court recently declined to hear a case where the Ninth Circuit Court of Appeals determined that including a waiver with a Fair Credit Reporting Act (FRCA) disclosure may be a willful violation of the law. It’s a good time, says Michael Gentry, for employers nationwide to reassess their FCRA disclosures.

In a recent holding, the Seventh Circuit raised the proof of causality threshold under the False Claims Act from a “but-for” standard to “proximate cause.” Alan Olson discusses the holding and its implications.

The Seventh Circuit recently reaffirmed its position that an employee’s leave of two months or longer is not a “qualified individual with disability” with protection under the Americans with Disabilities Act. David A. McClurg discusses the implications of the recent appeal, in which he argued on behalf of the employer.

Nicholas McLeod takes a statistical look at the current state of employment discrimination, retaliation, and harassment claims in Wisconsin, and the trends they reveal. “More than 50 years after Title VII, race is still the most litigated form of employment discrimination in Wisconsin and in the U.S., showing no signs of slowing down,” McLeod says.

A recent case in the Ninth Circuit Court of Appeals shows just how broad the FLSA’s anti-retaliation provisions can be. Claire Roehre discusses the case, which involves retaliation by an employer’s attorney against an undocumented worker for bringing a lawsuit over numerous workplace violations.

Understanding the differences between Wisconsin’s white-collar exemptions to overtime pay and their federal Fair Labor Standards Act counterparts requires an appreciation of the history and development of those exemptions under both the FLSA and Wisconsin law.

The U.S. Department of Labor’s updated overtime regulations were set to go into effect Dec. 1, 2016, but were halted by an injunction. Erica Reib discusses the regulations’ current status and what may be next.

A proposal in Gov. Scott Walker’s 2017-19 budget for an Equal Rights Division “Offer of Settlement” procedure is unnecessary and will place significant burdens on employees seeking to enforce their rights, say Jeffrey Sweetland and Barbara Zack Quindel.

The proposed elimination of Labor and Industry Review Commission in Gov. Walker's budget raises big questions about the future of unemployment, workers' compensation, and unemployment cases. “The reason for the Commission’s elimination establishes a chilling effect on judicial independence of any kind,” writes Victor Forberger

Employees traveling for work are entitled to worker's compensation benefits for injuries sustained while engaging in “reasonable recreation” without the activity being considered a “deviation” from employment. Attorney Aneet Kaur discusses a recent Court of Appeals decision finding injuries sustained by an employee, after a day of bar-hopping with his co-worker, compensable under the Worker’s Compensation Act.

Social media in the workplace can raise thorny questions and expose employers to liability in a number of scenarios. Timothy Edwards outlines the important questions that employers must confront when their employees are allowed to access social media while at work.

Donald Trump’s Jan. 27 Executive Order suspends the issuing of immigration visas and other immigration benefits to citizens of several Middle Eastern countries, affecting employees of U.S. businesses and employees' family members. How should companies and their human resources staff respond to the impact of this Executive Order?

Bryan Symes discusses the potential impact of a recent case, EEOC v. St. Joseph’s Hospital, Inc. on Americans with Disabilities Act accommodations. While the Eleventh Circuit concludes that the best candidate gets the job – what does this mean for Wisconsin?

In May 2016, the Seventh Circuit held that arbitration agreements which prevent employees from proceeding collectively violate the NLRA and are thus unenforceable in Lewis v. Epic Systems Corp. Now, the Seventh Circuit has reiterated that holding in Riederer v. United Healthcare Services, Inc., and further drawn attention to a widening circuit split needing resolution by the U.S. Supreme Court.

Whether a mediation term sheet creates an enforceable settlement will be governed by state contract law, according to the Seventh Circuit. Mediator Jill Hamill Sopha discusses how parties can take steps to avoid unintended consequences of poorly drafted mediation term sheets.

Through Northwestern University, the National Labor Relations Board punted – but left open – the substantive issue of whether private university, grant-in-aid scholarship football players meet the statutory definition of “employee” for purposes of the National Labor Relations Act.

The Wisconsin Court of Appeals recently ruled – for the first time – that Wis. Stat. section 103.465 on the enforceability of restrictive covenants in employment relationships applies to employee non-solicitation provisions. This recent development may make many employers’ current covenants unenforceable.

The Department of Labor’s new overtime rules go into effect Dec. 1, 2016. In addition to increasing the salary level required to satisfy the white collar exemption, the new rules affect how nondiscretionary bonuses, incentive payments, and commissions may be used to meet the salary level requirement.

Jerome Grzeca writes about recently announced penalty increases for immigration-related violations from the U.S. Justice Department, and discusses the new Form I-9, to be released Nov. 22.

The Affordable Care Act requires applicable large employers to provide health insurance coverage statements to employees and file annual information returns with the IRS. The details should be used to inform a large employer’s group health plan purchase or renewal strategy.

Under new unemployment legislation rules, employees may be denied unemployment benefits if they are found to have engaged in “substantial fault.” A recent decision from the Wisconsin Court of Appeals gives us one of the first interpretations of what “substantial fault” means.

In this post, Julie A. Lewis discusses the recent Wisconsin Supreme Court decision in United Food & Commercial Workers Union, Local 1473 v. Hormel Foods Corp. regarding the compensability under Wisconsin law of employee time spent donning and doffing sanitary clothing and personal equipment.

A federal district court judge sitting in the Western District of Wisconsin recently held that employers may condition eligibility for employer-sponsored health insurance upon participation in a wellness plan under the Americans With Disabilities Act’s “safe-harbor” provision in some circumstances, writes Meg Vergeront.

Although the Conagra Foods, Inc. decision floated under the radar due to other noteworthy decisions around the same time, most management-side labor-relations lawyers – myself included – viewed the decision as part of an insidious attack on the ability ofcompanies to prohibit and/or curb a species of workplace chatter that is disruptive and threatens productivity and security.

Do employers who discount cash fringes in calculating overtime pay violate the Fair Labor Standards Act?

In Woods v. City of Berwyn, the Court of Appeals for the Seventh Circuit finds facts sufficient to break the cat’s paw chain of discrimination liability and, in doing so, provides hints to plaintiff and defense counsel regarding how this proximate cause theory may be analyzed.

A recent Seventh Circuit decision may give some Wisconsin employees with restrictive covenants a stronger basis upon which to challenge the restrictions on their ability to compete with their employer and take co-workers with them.