Publications: Labor and Employment


  • U.S. Supreme Court Remands Gloucester County Transgender Case

    March 6, 2017

    On March 6, 2017, the United States Supreme Court, in a one sentence order, indicated that they would not hear Gloucester County School Board v. G.G., the pending transgender case. The Court stated that the judgment was vacated and remanded back to the Fourth Circuit Court of Appeals for “further consideration in light of the guidance issued by the Department of Education and the Department of Justice on February 22, 2017.” Both parties told the Supreme Court that they would like them to hear the case as planned. Although the Supreme Court will not hear the case at this time,...



  • Employers Face Difficult Leave Issues

    March 3, 2017

    One of the more complex issues employers face from time to time is a request from an employee for extended or sporadic leave related to a medical condition. This article will touch on a number of the factors to consider in such scenarios, as well as highlight a recent federal court case which dealt with issues related to extended medical leave. This discussion is based on generalities and competent legal advice should always be sought for guidance in actual instances. Often issues arise when employees with historically good attendance records contract a chronic illness or mental health condition that requires extended...



  • Transgender Student Guidance Withdrawn

    March 2, 2017

    The U.S. Department of Education, along with the U.S. Department of Justice, issued a Dear Colleague Letter on February 22, 2017 withdrawing the “statements of policy and guidance” originally found in their May 13, 2016 Letter on Transgender Students. As discussed in our May 20, 2016 client alert, and updated alerts on August 8, 2016 and October 28, 2016, the May 2016 guidance discussed a school’s obligation under Title IX to treat a student consistent with a student’s gender identity when a student or the student’s parent or guardian notifies school administration that the student will assert a gender identity...



  • New Law Allows Small Employers to Establish HRA's for Their Employees

    February 16, 2017

    Under a new law signed by President Obama on December 13, 2016, qualified small employers may now contribute to health reimbursement accounts (HRA's) to help employees with eligible medical expenses, including health insurance premiums. This change provides small employers who do not offer group health plans with a new option for assisting their employees with the cost of health care. Background The 21st Century Cures Act signed last year overrides the prior IRS and DOL interpretations and creates a new category of HRA. Qualified Small Employer Health Reimbursement Accounts (QSEHRA) may be established by applicable small employers who are not otherwise...



  • OSHA Issues Recommendations for Anti-Retaliation Programs

    January 23, 2017

    The Occupational Health and Safety Administration’s Whistleblower Protection Programs issued Recommended Practices for Anti-Retaliation Programs to assist employers with “creat[ing] workplaces in which workers feel comfortable voicing safety and other concerns without fear of retaliation.” The recommendations, while only advisory, apply to all public and private sector employers covered by the 22 whistleblower protections laws enforced by OSHA. The recommendations, which are available here, provide a brief synopsis of what constitutes retaliation for “protected” activities by employees (such as filing a report of possible violation of the law with OSHA or other government agencies, reporting a concern about a possible violation...



  • Breaking News: Federal Judge Blocks DOL Overtime Rules

    November 23, 2016

    Late yesterday, a federal judge in Texas issued a nationwide injunction blocking the Department of Labor (DOL)’s Final Rule and its regulations regarding the new salary thresholds for the so-called “white collar” exemptions that were set to go into effect on December 1st. The injunction not only prevents the regulations related to the Final Rule from taking effect, it prevents the DOL from enforcing these new regulations. The injunction is not a final order and is subject to potential revision or appeal, but has nationwide, immediate effect until further order of the court or an appellate court. As we have reported...



  • Revised I-9 Employment Eligibility Verification Form: Begin Using by January 22, 2017

    November 21, 2016

    This month marks the 30th anniversary of the adoption of the I-9 – the form that requires employers to check the immigration status of its prospective employees. While employers have become familiar with the process, over that time there have been 11 different versions of the I-9. So the introduction of the latest version, released just last week, is in keeping with the government’s continuing effort to refine the process. This time however, the changes to the Employment Eligibility Verification process arrive on the heels of a significant increase in the penalties for I-9 violations. These changes will impact employers...



  • Are Your District Websites Accessible to Individuals with Disabilities?

    October 28, 2016

    An increasing area of attention for the U.S. Department of Education Office of Civil Rights (OCR) is whether school districts are providing accessible websites for individuals with disabilities. OCR has heightened its enforcement actions against larger educational institutions over the past few years for violations of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act for failing to provide accessible websites consistent with both laws’ protections. OCR’s enforcement actions are now beginning to trickle down to the local level and will begin to affect all districts large and small in the months ahead....



  • U.S. Supreme Court to Weigh in on Transgender Issue as Wisconsin Federal Judge Allows Transgender Discrimination Lawsuit to Proceed Under Title IX

    October 28, 2016

    On October 28, 2016, the U.S. Supreme Court agreed to hear the appeal of the 4th Circuit’s decision in the G.G. v. Gloucester County School Board (discussed in our Client Alert dated August 8, 2016), which will clarify the status of the law and split in lower court decisions. The U. S. Supreme Court announcement follows current Wisconsin federal court action surrounding the Kenosha School District and transgender school issues. A Wisconsin federal court has now issued two decisions as a result of a transgender student’s lawsuit against Kenosha Unified School District. Student Ashton Whitaker, who identifies as male, sued the...



  • Playing with Fire – Are You Using PBIS Appropriately with Disciplinary Removals?

    October 28, 2016

    In August, the U.S. Department of Education’s Office of Special Education Programs (OSEP) released guidance regarding the use of positive behavioral interventions and supports (PBIS) in individualized education programs (IEPs). OSEP outlined schools’ obligations in providing PBIS to ensure that students with disabilities are receiving Free Appropriate Education (FAPE) under the Individuals with Disabilities Education Act (IDEA). It is critical that districts are aware of OSEP’s concerns over proper consideration of behavioral supports to address a student with disability’s behavior, which may constitute a denial of FAPE. OSEP’s guidance explains that recent data concerning short-term disciplinary removals, including out of school...



  • School and Higher Education Law Newsletter

    October 28, 2016

    Featured News: U.S. Supreme Court to Weigh in on Transgender Issue as Wisconsin Federal Judge Allows Transgender Discrimination Lawsuit to Proceed Under Title IX Court Denies Teachers' Attempt at Pre-Act 10 Protections Playing with Fire - Are You Using PBIS Appropriately with Disciplinary Removals? Wisconsin Court of Appeals Upholds School District's Post-Act 10 Reduction of Retirement Benefits Are Your District Websites Accessible to Individuals with Disabilities? Save the Date! Davis & Kuelthau's 29th Annual School Law Seminar US Supreme Court to Weigh in on Transgender Issue as Wisconsin Federal Judge Allows Transgender Discrimination Lawsuit to Proceed Under Title IX On October 28, 2016, the U.S. Supreme Court agreed...



  • Wisconsin Court of Appeals Upholds School District’s Post-Act 10 Reduction of Retirement Benefits

    October 28, 2016

    A recent unpublished opinion of the Wisconsin Court of Appeals affirms the principle that Wisconsin school districts are authorized to unilaterally determine the amount of retiree benefits offered in the post-Act 10 era. The Court’s August 2016 ruling in Townsend v. Neenah Joint School District brought closure to a series of related cases arising from a class-action lawsuit brought by current and former teachers of the Neenah Joint School District (the District). The teachers unsuccessfully sought reinstatement of certain supplemental retirement benefits that were reduced following the expiration of a collective bargaining agreement (CBA) in place between teachers and the Neenah...



  • Court Denies Teachers’ Attempt at Pre-Act 10 Protections

    October 28, 2016

    In a resounding success for Wisconsin school districts, another attempt by the Wisconsin Education Association Council to use the courts to re-insert pre-Act 10 collectively bargained terms into individual teaching contracts has been rejected. In Marks, et al. v. Board of Education of the Wisconsin Rapids Public Schools, Wood County Case No. 14-CV-205, three teachers, represented by attorneys employed by WEAC, claimed their individual teaching contracts were illegal for three reasons. First, they claimed that a for-cause termination standard is inherent in all individual teaching contracts, deeming the arbitrary and capricious standard in their contracts illegal. Second, they argued that by...



  • Temporary Workers and the FMLA: What You Don’t Know Can Hurt You

    October 25, 2016

    Temporary Workers and the FMLA As most employers know, the federal Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Employers covered under the FMLA include public agencies, state, local and federal employers, and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year. Further, to be eligible for FMLA leave, an employee must have...



  • U.S. Looking to Temporally Admit International Entrepreneurs to Provide More Opportunities for Start-Up Businesses

    September 26, 2016

    Businesses, academic institutions and start-ups will be receiving a boost this year from the Department of Homeland Security. We are on the verge of the first new major business immigration benefit in several years. On August 31, 2016, the United States Citizenship and Immigration Services (USCIS) proposed a new rule, which would allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States. The purpose of the International Entrepreneur Parole rule is to attract and keep immigrants involved with high-potential start-up...



  • Federal District Court in Texas Issues Preliminary Injunction Halting Federal Government’s Enforcement of Transgender Discrimination Guidance

    August 25, 2016

    A new development has arisen in the current evolution of transgender discrimination law applicable to school districts and other entities receiving federal money throughout the country. The latest turn involves a Texas federal district judge’s decision to issue a preliminary injunction against the federal government’s enforcement of its May 20, 2016 guidance interpreting sex discrimination as including transgender discrimination. The lawsuit initiated by the State of Texas (Wisconsin and 12 (twelve) other states joined) is directed at the U.S. Department of Education and U.S. Department of Justice and is based on the May 20, 2016 transgender guidance. The Texas judge’s preliminary...



  • U.S. Supreme Court Offers Temporary Ruling on Transgender Discrimination Against Students

    August 8, 2016

    Transgender considerations continue to evolve, particularly relative to the impact on the nation’s school districts, colleges and universities. As noted in our May 20, 2016 Legal Alert, the U.S. Department of Justice and Department of Education issued joint guidance in an effort to unify the nation’s approach. More recently, the 4th Circuit Court of Appeals held that a transgender student from Virginia should be allowed to use a boy’s restroom. The Appeals Court held that the School District violated Title IX of the education law, which bans discrimination on the basis of gender. This case was significant because it held...



  • New OSHA Rules May Restrict Post-Accident Drug Testing and Safety Incentive Programs

    July 8, 2016

    On May 12, the Occupational Health and Safety Administration (OSHA) published new rules relating to record-keeping, injury reporting, post-accident drug testing, safety incentive programs, and retaliation against employees for reporting an accident or injury. This article focuses on the last four items that become effective on August 1, 2016. All employers, regardless of size, should revisit their injury reporting, drug testing and safety incentive programs immediately to address these new rules. Some commentators have opined that these rules are the death knell of mandatory post-accident testing. Time will tell if that is so, but it is clear that long-standing employer...



  • EEOC Releases Final ADA Wellness Program Rules and Sample Notice

    June 30, 2016

    Workplace wellness programs have been a complex and controversial topic in recent years with Equal Employment Opportunity Commission (EEOC) lawsuits, proposed rules, and now final rules. On May 17, 2016, the EEOC issued a final rule (the “Rule”) to amend the regulations and guidance implementing Title I of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs. EEOC Final Rule Requires Wellness Plans to be “Voluntary” Wellness programs commonly gather health information through voluntary health risk assessments or biometric screenings that include medical examinations. In order to comply with the ADA, according to the Rule, any workplace...



  • OFCCP Updates Sex Discrimination Guidelines for Government Contractors

    June 30, 2016

    On June 14, 2016 the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued a final rule (set forth in 41 C.F.R. Part 60-20), which for the first time since 1970, updated the sex discrimination guidelines applicable to federal government contractors and subcontractors as well as contractors and subcontractors operating under federally assisted construction contracts. The agency noted that because the original guidelines were published more than four and a half decades ago, women have become far more represented in the workplace and this “changing reality of the modern workforce” needed to be recognized with updated guidance...



  • US Supreme Court on Verge of Deciding Key Case Impacting Legal Status of Millions of Immigrants

    June 3, 2016

    This past April, the Supreme Court heard oral arguments in the case of United States v. Texas, a challenge to President Obama’s 2014 executive action on immigration. The decision will affect the legal status of millions of individuals. Specifically, the case concerns the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policies. These policies would allow certain undocumented immigrant children and certain undocumented immigrant parents of citizen and permanent resident children to temporarily remain in the United States, respectively. The Court will decide whether these policies exceeded the executive branch’s...



  • Continuing “Education” - Developing Law and Guidance on Transgender Discrimination Against Students and Employees

    May 20, 2016

    The legal rights of individuals who identify as “transgender” and “gender nonconforming” are at the forefront of our national attention. As this area of the law continues to develop, it is critical that school districts and employers review policies and procedures to understand the various compliance issues based upon the current guidance from the federal government agencies and courts. On Friday, May 13, 2016, the U.S. Department of Justice and Department of Education issued joint guidance in a Dear Colleague Letter directed to school districts, colleges and universities receiving federal money, which they declared as “significant guidance.” The Letter states that...



  • New overtime rules announced. Millions of employees impacted. Are you ready?

    May 18, 2016

    Breaking News: Federal Judge Blocks DOL Overtime Rules (November 23, 2016) Original May 2016 article: On Tuesday, May 17, the Department of Labor (DOL) announced new rules on overtime pay, fulfilling President Obama’s 2014 promise to raise the salary level at which employers are required to pay overtime. These changes will have wide impact for virtually all profit and non-profit organizations, and the DOL estimates that almost 4.2 million U.S. workers who are currently exempt will now be eligible for overtime compensation under the new salary level requirements. The rules provide that employers must implement these changes by DECEMBER 1, 2016. It...



  • Protecting Your Business Assets: Nationalized Trade Secret Protection Has Arrived

    May 11, 2016

    Today marks a day of success for inventors across the United States. From recipes and formulas to processes and design, U.S. businesses now have a new method of defense in the quest to safeguard their valuable trade secrets from would-be thieves and rogue employees. President Obama signed the Defend Trade Secrets Act of 2016 ("DTSA") into law, creating a new federal cause of action for the misappropriation of trade secrets. Until today, the owners of trade secrets had to rely on state-by-state protections for their trade secrets – and not all protections were created equal. The DTSA has been a long...



  • Looking Ahead: Restricting Mandatory Arbitration Clauses

    April 28, 2016

    Does your business include mandatory arbitration clauses in its contracts? Such clauses are increasingly common, but restrictions may be imminent. One source of restrictions may be through rulemaking by the Consumer Financial Protection Bureau (CFPB). Congress, through the Dodd-Frank Act, required the CFPB to study the use of mandatory arbitration clauses in consumer contracts and to issue regulations based on its study. In October 2015, the CFPB announced that it is considering proposing rules that ban arbitration clauses that prohibit consumers from participating in class action lawsuits for products and services the CFPB oversees. These products and services include credit cards,...



  • ACA Forms Due to Employees by March 31; Potential Need to Appeal Marketplace Employer Notices on the Horizon

    March 24, 2016

    March, May and June Employer Affordable Care Act (ACA) Reporting Deadlines The revised deadline for employer ACA reporting is just around the corner. By the end of the month (March 31, 2016), employers required to report health care coverage offers must furnish a statement to employees who worked 130 hours or more in at least one month in the 2015 calendar year. These employees should receive a completed IRS Form 1095-C or 1095-B, as applicable. Thereafter, employers have until May 31, 2016 (or until June 30, 2016, 2016, if filing electronically) to submit copies of these forms to the IRS, together...



  • New Employer Worry: Expansion Of Joint Employer Under DOL Guidance

    February 3, 2016

    In January 2016 the Department of Labor (DOL) Wage and Hour Division (WHD) issued an Administrative Interpretation (AI) (No. 2016-1, 1/20/16) that would significantly expand the number of employers who would be classified as “joint employers” under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Employers are rightfully concerned over increased potential liability for violating the FLSA or MSPA. If two or more employers are considered a joint employer, they may be held jointly and severally liable for minimum wage, overtime and other violations of the FLSA and MSPA. The AI notes: “When...



  • January 31, 2016 ACA Employee Notice Deadline Looms; Cadillac Tax Delayed; Other ACA Developments

    December 23, 2015

    January 31, 2016 Deadline to Furnish Forms to Employees By January 31, 2016, many employers must furnish notices to employees in connection with the Affordable Care Act (“ACA”) information reporting requirements. Think of it as a W-2 for employer-provided health coverage. As summarized in our November 23, 2015 Client Alert, either a Form 1095-C or 1095-B must be furnished to employees, depending on the coverage type, the size of employer, and the existence of related employers. The Form will provide information about health care coverage offered (or not offered) to employees and their family members during the 2015 calendar year. February (or...



  • Labor & Employment Attorneys Laurie Meyer Discusses Joint Employer Status Assessments in New North B2B Publication

    October 1, 2015

    Laurie Meyer of Davis & Kuelthau’s appellate practice, employment litigation, food and beverage industry, labor and employment and litigations teams authored an article, The NLRB says you could be held responsible for a worker you didn’t intent to employ., for for New North B2B's October 2015 publication. To read the article, please click here....



  • The NLRB says you could be held responsible for a worker you didn’t intend to employ.

    September 10, 2015

    Late last month, the National Labor Relations Board (NLRB) issued the long-awaited Browning-Ferris Industries of California, Inc. opinion in which it changed the standards for assessing a joint-employer status. With this opinion, the NLRB returned to the traditional test and held that joint-employer status may be found if two or more entities are “both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.” While this opinion may not impact all employers, it does impact over 5.7 million private employees across the country, and implicates three major...



  • Circuit Court Rules That WERC Exceeded Its Rule-Making Authority

    August 12, 2015

    Just when you thought all of the Act 10 litigation had been resolved, along comes Wisconsin Association of State Prosecutors and Service Employees International Union, Local 150 v. WERC in several combined cases challenging the rule-making authority of the Wisconsin Employment Relations Commission (WERC) regarding the election process. Milwaukee County Circuit Court Judge John J. DiMotto issued an order on July 31, 2015 finding that the WERC exceeded its statutory authority under its administrative rules ERC 70 and 80 with respect to the requirement that a union file a petition for an annual recertification election. The court ruled that based...



  • Labor & Employment Attorney Bruce Deadman Discusses Overtime Regulation Changes in New North B2B Publication

    August 1, 2015

    Bruce Deadman of Davis & Kuelthau’s employee benefits and labor and employment teams authored an article, Department of Labor Unveils Long-Awaited Proposed Overtime Rules for New North B2B's August 2015 publication. To read the article, please click here....



  • New Laws Impact School Districts

    July 7, 2015

    Last week, Governor Scott Walker signed five (5) education-related bills (below) that will impact Wisconsin school districts in a variety of ways. A number of the changes will provide more efficient school operations. School districts should review and revise their policies, procedures and practices to ensure that they are consistent with the new laws. A. Notice of Habitually Truant Students Act 52 expanded the methods by which school districts are able to provide notice to parents/guardians about their habitually truant student(s). Prior to Act 52, school districts were limited to providing notice to parents/guardians via registered or certified mail. After Act 52,...



  • Summary of Public Safety Interest Arbitration Cases, Volume 4

    July 7, 2015

    This information update summarizes public safety interest arbitration awards that have been issued since November 2014 when our third update appeared. (For prior editions, visit http://www.dkattorneys.com/publications.cfm?st_id=192.) Readers are encouraged to read the entire award for a complete understanding of each case. (See: http://www.werc.wi.gov.) I. City of Eau Claire (Firefighters), Dec. No. 34986-A, Karen J. Mawhinney, 1/12/15. Issue City Union ✔ 1.) Wages 7/1/13 2% 2% 7/1/14 2% 2% 1/1/15 -- 2% 2.) Health Insurance 1/1/14 90% 90% 1/1/15 87% 88% Determining comparables for the first time, Arbitrator Mawhinney stated: “Contrary to popular opinion, the comparable pool is not set in stone. It is only a guideline that is useful for this case, at this time.” She found that the City’s lowering...



  • Labor & Employment Attorney Mary Gerbig Discusses Changes in Non-Compete and Severance Agreements in New North B2B Publication

    July 1, 2015

    Mary Gerbig of Davis & Kuelthau’s labor and employment and school and higher education teams authored an article, Changes in Non-Compete and Severance Agreements for New North B2B's July 2015 publication. To read the article, please click here....



  • Proposed FLSA Regulations Impact Compensation of Salaried Employees

    July 1, 2015

    On June 30, the United States Department of Labor (DOL) released a 295-page Notice of Proposed Rulemaking (NPRM), seeking public comment on proposed rules amending the Fair Labor Standard Act’s (FLSA’s) “white collar” overtime regulations. The proposed changes will nearly double the salary exemption floor for full-time salaried employees and lay the framework for that floor to rise every year. The proposed rules would also increase the total compensation requirement needed to exempt highly compensated employees (HCEs) from overtime to the annualized value of the 90th percentile of weekly earnings of full-time salaried employees (or $122,148 annually). The proposed rules...



  • Attention Employers: The IRS May Be Googling Your Employee Benefits Communications

    June 10, 2015

    Public sector and tax-exempt employers in Wisconsin should be aware that the IRS appears to be targeting section 403(b) plans for examination. Prior to and during recent IRS examinations of 403(b) plans in the state, we have learned that the audit trigger more than once was the IRS’s review of the employers’ websites for 403(b)-related communications. Unfortunately, the information revealed that the employers’ respective 403(b) plans were not being operated in compliance with IRS requirements. The posted documents ultimately led to the IRS selecting the employers’ plan for examination. As the IRS has emphasized in two recent newsletters targeted to federal,...



  • "Notes" Are Not Subject to Disclosure Under the Public Records Law

    June 5, 2015

    The Wisconsin Court of Appeals ruled on June 4, 2015 that notes from an investigation by school district officials into alleged hazing and sexual abuse within its wrestling program were not records and therefore not subject to disclosure under the public records law. The Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2014 AP 1256. The Voice of Wisconsin Rapids newspaper requested all district records regarding an investigation into the district’s wrestling program. District employees conducted interviews, and retained their personal notes from those interviews. The District denied the newspaper’s request for the notes on the basis that...



  • Runzheimer Decision Signals Change of View Toward Restrictive Covenants

    May 1, 2015

    The Wisconsin Supreme Court has issued its decision in Runzheimer International, Ltd. v. Friedlen, 2015 WI 45, holding that an employer’s agreement to refrain from terminating a current at-will employee, without any further promise or benefit, constitutes lawful consideration for signing restrictive covenants, such that the restrictive covenants at issue would not be deemed unenforceable on that basis. This is an important development in the law governing restrictive covenants in Wisconsin, particularly from an employer’s perspective. Historically, Wisconsin law on the issue of restrictive covenants has been considered more employee-friendly, disfavoring the use of restrictive covenants, resolving doubts about the...



  • Effective Communication Under Title II of the Americans With Disabilities Act

    April 30, 2015

    The obligations of public school districts to meet the needs of students with disabilities is addressed in Title II of the Americans with Disabilities Act of 1990 (Title II) as well as Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Act (IDEA). The Office for Civil Rights (OCR) released guidance on how these regulations, and specifically Title II, impact the communication needs of students in public school districts (school or schools). In light of the growing obligations under the ADA and Title II, schools should review their practices related to Title II prior...



  • Long-Awaited Proposed EEOC Wellness Plan Rules Released

    April 22, 2015

    After years of silence as to how the Americans with Disabilities Act (the ADA) impacts employer compliance with workplace wellness programs, the EEOC late last week issued proposed rules, and a Fact Sheet (http://www.eeoc.gov/laws/regulations/facts_nprm_wellness.cfm) on the topic. The issuance of proposed rules is a welcome development for employer-sponsors of wellness programs, particularly in light of the Chicago regional EEOC office’s initiation last fall of several lawsuits alleging that certain employer wellness program practices violated the ADA. (See our November 2014 Client Alert: Workplace Wellness Programs Under Attack). As several American business groups and members of the U.S. Senate have observed, some...



  • Spouses of H1B Holders Now Eligible to Work in the U.S.

    April 8, 2015

    Starting May 26, 2015, the spouses of many H1B visa holders will be eligible for employment authorization documents (EADs). Currently, the dependents of non-immigrant workers under the H1B program are welcome to live in the United States and are granted a special dependent visa, known as an H4 visa. However, an H4 visa holder cannot engage in any work for compensation while they reside in the United States. This restriction puts a lot of H1B workers and their employers in a tough spot. It forces many to put careers on hold while they live in the United States, it can...



  • When a Retiree Returns to Work, WRS, ACA, and Tax Rules Impact Public Employers

    March 31, 2015

    As described in our February 23, 2015 Client Update, “Act 10 and Total Employee Compensation,” rules under the Wisconsin Retirement System (WRS) affect public employees throughout the employment life-cycle, from the initial determination of WRS eligibility through the termination of employment. An individual’s employment life-cycle is sometimes extended when he or she rejoins the workforce to provide services to a WRS employer after officially retiring. It is easy to understand how public employers can benefit from rehiring retired public employees, whether on a temporary, part-time, or longer-term basis. Retirees come prepared with a wealth of specific skills and experience without...



  • Work Opportunity Tax Credit Extended; IRS Issues Guidance on Certification for 2014 Tax Year.

    March 10, 2015

    Private sector employers are now further incentivized for their efforts in hiring otherwise disadvantaged workers. The IRS recently issued guidance extending the time employers may claim a Work Opportunity Tax Credit (“WOTC”) of $2,400 or more for each qualified employee hired in 2014. Because the Tax Increase Prevention Act of 2014 (see D&K’s Client Alert, President Signs Tax Increase Prevention Act of 2014: Incentives for Employers and Individuals) extended the WOTC retroactively for the 2014 tax year, employers need additional time to comply with the certification requirements of WOTC. Notice 2015-13, summarized below, provides employers guidance on compliance aspects of...



  • Wisconsin Passes Right to Work Law

    March 6, 2015

    The Wisconsin Legislature has passed, and Governor Scott Walker has declared he will sign, a “Right to Work” law in Wisconsin. The law will apply to private sector union contracts, prohibiting such contracts from including provisions that require all the employees covered by the contract to be members of the union or pay dues (or other fees in lieu of dues) in order to remain employed. Those provisions are commonly referred to as union security clauses. The Taft-Hartley Act of 1947 affirmed the right of individual states to enact right to work laws, and Wisconsin is now the 25th state...



  • Labor & Employment Client Newsletter

    February 24, 2015

    Featured News: Act 10 and Total Employee Compensation Review School Board Policies On Releasing Student Directory Data Event: Davis & Kuelthau's 37th Annual Public Officials Program Act 10 and Total Employee Compensation How well do your employees understand their total compensation beyond their base salary? Many employers are now providing information directly to individual employees with respect to how much the employer contributes toward their health insurance benefits. An employee’s total compensation, though, includes other benefits you provide, such as contributions toward retirement benefits. If you are a public employer participating in the Wisconsin Retirement System (WRS), you may have received questions about what types...



  • Review School Board Policies On Releasing Student Directory Data

    February 23, 2015

    School Choice Wisconsin, a nonprofit organization that supports expanding educational options for parents through the use of school vouchers, recently submitted open records requests to 30 school districts seeking student “directory data.” Initially, the organization wanted students’ names, addresses, phone numbers, grade levels and school of attendance. After hearing school district and parental concerns, the organization modified its request in most cases to include only student addresses. Sec. 118.125(1)(b), Wis. Stats., defines “directory data” as “those pupil records which include the pupil’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and...



  • Act 10 and Total Employee Compensation

    February 23, 2015

    How well do your employees understand their total compensation beyond their base salary? Many employers are now providing information directly to individual employees with respect to how much the employer contributes toward their health insurance benefits. An employee’s total compensation, though, includes other benefits you provide, such as contributions toward retirement benefits. If you are a public employer participating in the Wisconsin Retirement System (WRS), you may have received questions about what types of employee benefits are available through the WRS. Act 10 As a brief background, the WRS is administered by the Department of Employee Trust Funds (ETF). State law provides...



  • Wisconsin Supreme Court Holds Reimbursement of Medicare Part B Premiums Not a Vested Right for Milwaukee County Employees

    February 12, 2015

    Wisconsin Federation of Nurses and Health Professionals, Local 5001, AFT, AFL-CIO and Association of Milwaukee County Attorneys v. Milwaukee County, 2015 WI 12. Today’s Wisconsin Supreme Court decision in Wisconsin Federation is the latest ruling in a string of opinions relevant to retiree benefits vesting cases, and the second Wisconsin Supreme Court ruling to address the matter since the enactment of Wisconsin Acts 10 and 32. Consistent with other recently-decided benefits vesting cases, the Wisconsin Federation opinion shifts the analysis away from a presumption of vesting toward a fact-specific contract-law approach, under which benefits may in some cases be changed prospectively....



  • President Signs Tax Increase Prevention Act of 2014: Incentives for Employers and Individuals

    January 8, 2015

    On December 19, 2014, President Obama signed into law the Tax Increase Prevention Act of 2014 (HR 5771). Otherwise known as the “Tax Extenders” Act, this law retroactively extended through the end of 2014, over 50 tax breaks that expired on December 31, 2013. While there were discussions of making permanent a number of these extenders, particularly the Bonus Depreciation and Section 179 deductions, Congress ultimately passed on making any of these provisions permanent and punted the fate of the extenders to 2015 and the incoming 114th Congress. So, yes, that means that these very same provisions expired as of...



  • Tightening of “White Collar” Exemption Rules Is On The Horizon

    January 5, 2015

    In March of 2014, President Obama directed the U.S. Department of Labor (DOL) to “modernize and streamline” its regulations concerning who is (and is not) covered under the Fair Labor Standards Act (FLSA) Section 13(a)(1) overtime exemption for executive, administrative professional, and outside salesperson employees. A proposed rule was originally expected in November of 2014, but is now anticipated to be issued in February of 2015. While no one knows with certainty what the proposed rule will include, the prevailing wisdom is that it will: Include a substantial increase in the minimum salary amount, which has been $455 per week since...



  • U.S. Supreme Court Holds Time Spent in Security Screenings Is Not Compensable Under the Fair Labor Standards Act

    December 15, 2014

    On December 9, 2014, the Supreme Court ruled unanimously that time spent by warehouse workers to wait for and undergo security screenings after the end of their work shifts was not compensable under the Fair Labor Standards Act (FLSA). The case is Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, and it reinforces existing legal principles relevant to the proper determination of “hours worked” by non-exempt employees. The plaintiffs were two warehouse workers in Nevada who were employed by a staffing company that provided warehouse services to Amazon.com. The employees retrieved products from shelves and packaged them for shipment to Amazon’s...



  • NLRB Decides That Employees Have Presumptive Right to Use Employer Email Systems for Protected Communications

    December 12, 2014

    On December 11, 2014, the National Labor Relations Board (“NLRB”), in a 3-2 decision, ruled that employees have a statutory right to use their employer’s email systems for purposes of engaging in “protected, concerted activity” as well as union organizing efforts. This decision Purple Communications, Inc. v. Communications Workers of America, AFL-CIO, 361 NLRB No. 126 (2014), overrules the Board’s own 2007 decision, where the Board found that email systems were the employer’s property and as such, employees could be prohibited from using the email system for non-business purposes pursuant to a properly enforced electronic communications policy. NLRA Applies Even in...



  • Summary of Public Safety Interest Arbitration Cases, Volume 3

    November 25, 2014

    This information update summarizes public safety interest arbitration awards that have been issued since our update of July 2013. (See: Davis & Kuelthau “Arbitrators' Awards Arrive”, December 19, 2012, and “Arbitrators’ Awards Update”, July 18, 2013). Readers are encouraged to read the entire award for a complete understanding of each case. (Full text of the decisions are available at www.werc.wi.gov. I. Washington County (Deputy Sheriffs), Dec. No. 34039-A, Dennis P. McGilligan, 7/19/13. Issue County Union ✔ 1. Wages 1/1/12 0% 2% 1/1/13 2% -- 2. WRS (employee contribution) 2012 0% 0% 2013 2% -- 3. Duration 2 years (2012/2013) 1 year (2012) 4. Health Insurance Dollar amt. reflecting 85% No offer Arbitrator McGilligan focused on wages and Wisconsin Retirement System (WRS) to decide this...



  • Year-End Strategies Pave the Way for Minimizing Your Tax Burden in 2015

    November 24, 2014

    The final months of 2014 are a great time to finalize your tax planning opportunities and set the stage for minimizing your tax outlay in 2015. As a business owner, please be aware that in the wake of the election, sources indicate tax extenders are likely to pass, with some differences between the two houses in Congress being characterized as “easily resolvable” — one house leaning toward passing tax extenders as one bill, the other addressing tax extenders as six separate bills. Broad tax reform, even if put on a fast track would not likely take effect until late 2015...



  • Workplace Wellness Programs Under Attack

    November 19, 2014

    Within the last four months, the Equal Employment Opportunity Commission (EEOC) has filed lawsuits against two (2) Wisconsin employers and one Minnesota employer alleging that each of the employers’ workplace wellness programs were in violation of the Americans with Disabilities Act (ADA). The EEOC has been able to file such lawsuits because the language of the ADA and the language of the Affordable Care Act (ACA) are not consistent in establishing workplace wellness program requirements and such requirements have not yet been clarified by a legal or authoritative body. As such, any employer operating a workplace wellness program that imposes...



  • Student Teachers and Video Recording in the K-12 Classroom

    November 12, 2014

    As part of Educator Effectiveness, student teachers in Wisconsin must create and submit to peer review video clips of the student teacher engaged in teaching activities. The video clips will capture the student teacher interacting with K-12 students in the classrooms of Wisconsin public school districts. Such video clips are clearly pupil records for the student teachers, but depending upon the images and audio captured, the video clips may also be pupil records for the K-12 student(s). Before a Wisconsin public school district allows a student teacher to video record himself/herself in a classroom interacting with K-12 students, it is...



  • New Annual Recertification Election Rules

    August 7, 2014

    The Wisconsin Employment Relations Commission’s administrative rules governing annual union certification elections are permanent as of July 1, 2014. The only difference between the previous temporary rules and the new permanent rules is the deadline for unions representing school district employees to submit petitions for election; the new deadline is September 15, instead of August 30. Thus, in accordance with the Wis. Admin. Code § ERC 70.03, a labor organization currently representing a bargaining unit of school district employees must file a petition for an annual election with the WERC on or before September 15, 2014, if the labor organization wishes...



  • Wisconsin Supreme Court Rejects Constitutional Challenge to Domestic Partnership Law

    August 4, 2014

    On July 31, 2014, the Wisconsin Supreme Court decided Julaine K. Appling, et al. v. Scott Walker, which addressed the limited issue of whether Chapter 770 of the Wisconsin Statutes, the Domestic Partnership Law, violated Art. XIII, Sec. 13 of the Wisconsin Constitution, known as the (“Marriage Amendment”). The Marriage Amendment, added to the Wisconsin Constitution in 2006, provides that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized...



  • Wisconsin Supreme Court Declares Act 10 Is Constitutional

    July 31, 2014

    On July 31, 2014, the Wisconsin Supreme Court declared 2011 Wisconsin Act 10 (Act 10 or the Act) constitutional in its entirety. It may be hard to believe, but it has been over three years since Act 10 became law. Act 10, which prohibited virtually all collective bargaining for general municipal public sector employees in Wisconsin (those that are not either public safety or transit employees), has been the subject of numerous and continuous legal battles. That lengthy legal struggle has now come to a conclusion with the Wisconsin Supreme Court ruling, by a 5-2 vote, that all aspects of...



  • EEOC Issues Updated Guidance on Pregnancy Discrimination and Related Issues

    July 17, 2014

    On July 14, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued “Enforcement Guidance on Pregnancy Discrimination and Related Issues,” along with a Question and Answer document about the guidance and a Fact Sheet for small businesses. All are available on the EEOC’s website, www.eeoc.gov. This guidance supersedes the agency’s previous guidance, written more than 30 years ago, and provides an expanded interpretation of what constitutes pregnancy discrimination and when an employer is obligated to accommodate pregnancy-related work restrictions. According to the EEOC’s press release, the guidance addresses many topics, including: The fact that the Pregnancy Discrimination Act (“PDA”), which is part...



  • Supreme Court Ruling Impacts Closely-Held Companies

    July 3, 2014

    On June 30, 2014, the U.S. Supreme Court issued a controversial decision affecting certain closely-held corporations. The Court’s 5-4 decision in Burwell et al. v. Hobby Lobby Stores, Inc. et al. resolved a split among the federal appellate courts to hold that the federal government may not tax closely-held corporate employers who, for religious reasons, decline to provide contraception coverage mandated under the Affordable Care Act (ACA). Background The Hobby Lobby decision involved three family-owned businesses (the Corporations) owned by two families whose owners claimed a religious exemption from a portion of the ACA coverage mandates. Under regulations promulgated by the Department...



  • Hiring an Independent Contractor? You Might Be Liable.

    July 2, 2014

    The Wisconsin Supreme Court recently clarified in Brandenburg v. Luethi the law in Wisconsin concerning owner liability for damages caused by an independent contractor. The Brandenburg case involved a homeowner who contracted with a company to spray herbicide on trees on his property. In the course of spraying the homeowner’s trees, herbicide drifted onto 79 trees on an adjacent property, causing permanent damage to those trees. The independent contractor was insolvent and the owner of the damaged trees, Brandenburg, sought damages from the homeowner, Luethi. Luethi denied liability, relying upon the general rule in Wisconsin, i.e., that an individual or entity...



  • Changes in State Wage and Hour Laws Impact Employers

    June 25, 2014

    President Obama directed the Department of Labor in March to come up with a way to update overtime pay rules to reflect the “changing nature of the American workplace” and to make them more” in keeping with the intention of the Fair Labor Standards Act." The review is intended to focus on the current “White Collar” exemptions which exclude positions that are “executive,” “administrative,” “professional,” “outside sales” and certain “computer” professions from the requirement of paying overtime pay for work over 40 hours per week. Based upon that federal administrative scrutiny of the traditional white collar exemptions, employers would be...



  • Court Ruling and DOL Proposal Adds Confusion to Wisconsin Same-Sex Couple Access to Federal FMLA Benefits

    June 24, 2014

    On June 6, Federal District Judge Barbara Crabb held in Wolf et al v. Walker that the prohibition against same-sex marriages in Wisconsin found at Article XIII, § 13 of the Wisconsin Constitution violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Initially, Judge Crabb, unlike judges in other states faced with similar cases, did not stay the effect of her ruling pending anticipated appeals by the State to the Seventh Circuit Court of Appeals. As a result, all but 19 of Wisconsin’s counties began issuing marriage licenses to same-sex couples, and an estimated 700...



  • Good Communication Required Under ADA

    May 5, 2014

    The Americans with Disabilities Act (ADA), a federal law designed to eliminate discrimination against individuals with disabilities, contains important requirements on ensuring effective communication with individuals with vision, hearing or speech disabilities. The Civil Rights Division of the Department of Justice (DOJ) recently issued guidance on the effective communication requirements. DOJ is responsible for implementing Title II (applies to programs, activities and services of public entities) and Title III (applies to public accommodations, commercial facilities and private entities that offer certain examinations and courses related to educational and occupational certification) of the ADA. Title III entities range from hotels, restaurants,...



  • New Law Restricts Access to Personal Internet Accounts by Employers, Educational Institutions and Landlords

    April 10, 2014

    Access to personal Internet accounts by Wisconsin employers, educational institutions and landlords has been severely limited by a new law. As a result of 2013 Wisconsin Act 208, it is now illegal for a Wisconsin employer to request or require that an employee or applicant provide the employer with access to his/her personal Internet account. Similar prohibitions apply to Wisconsin educational institutions, including institutions of higher education, public schools, charter schools, private schools and educational testing services, with regard to current and prospective students; and to landlords concerning current and prospective tenants. Furthermore, effective April 10, 2014, such entities may...



  • Review of Overtime Exemptions May Bring Further Costs

    April 7, 2014

    While considerable public debate continues over whether the current federal minimum wage should be increased, a separate wage and hour discussion is also taking place that may have a far greater impact. On March 13, 2014, President Obama directed the Department of Labor to come up with a way to update overtime pay rules to reflect the “changing nature of the American workplace” and to make them more” in keeping with the intention of the Fair Labor Standards Act." The review is intended to focus on the current “White Collar” exemptions which exclude positions that are “executive,” “administrative,” “professional,” “outside...



  • President Signs Executive Order Increasing Minimum Wage for Some Employees of Federal Contractors and Subcontractors

    February 26, 2014

    On February 12, 2014 President Obama signed an Executive Order establishing a minimum wage of $10.10 for the employees of certain federal contractors and subcontractors. The increased minimum wage requirement is effective January 1, 2015 and applicable to any contract entered into on or after the date of the Order. There has been a lot speculation and some confusion regarding the scope of the Executive Order. The purpose of this Client Update is to provide clarification, to the best extent possible, as to what contracts are covered and which are not. The Order does direct the Secretary of Labor to issue...



  • Final ACA Regulations Provide Clarity, Allow Employers to Ease In to Compliance

    February 24, 2014

    On February 10, 2014, the Internal Revenue Service (IRS) issued final regulations that provide additional guidance and significant transition relief with respect to the “pay-or-play” rules (also called the employer shared responsibility rules) under the Affordable Care Act (ACA). The final rules retain the core structure of the prior rules, but modify deadlines and certain aspects of coverage. These modifications are intended “to ensure a gradual phase-in” and to assist affected employers in implementing pay-or-play policies and procedures. Some of the most significant transition provisions are summarized below. Pay-or-Play Penalty Refresher In order to avoid a penalty under the ACA...



  • NLRB Drops Controversial Posting Rule

    January 7, 2014

    On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule which was intended to require all employers covered by the National Labor Relations Act (NLRA) to post a new notice advising employees of their right to engage in collective bargaining activity. As the NLRA applies to most private sector employers, not just those with unionized workforces, the requirement (including the consequences for failure to post) would have impacted almost all private sector businesses. As was anticipated, the posting rule generated considerable opposition from the human resource and business communities. Litigation was commenced by business groups which resulted...



  • More Record Keeping Ahead for Federal Contractors and Subcontractors

    December 16, 2013

    Federal and state contractors and subcontractors who are required to maintain an Affirmative Action Plan (AAP) have some additional plan work to do within the next year involving the 2010 Census Data. But just what are these new requirements and who is affected. Who is a Federal Contractor or Subcontractor? If your company does business with the federal government, you are most likely a federal contractor under Executive Order 11246. The Office of Federal Contract Compliance (OFCCP) enforces this Order, as amended, which prohibits federal contractors and federally-assisted construction contractors and subcontractors, who do more than $50,000 in government business in...



  • Changes to Wisconsin’s Unemployment Compensation Laws

    November 18, 2013

    The 2013-2015 Biennial Budget Bill, 2013 Wisconsin Act 20 (“Act 20”) made substantial changes to Wisconsin’s Unemployment Compensation Laws. These changes, some of which became effective on September 30, 2013, and the rest on January 5, 2014, are intended to assist Wisconsin employers in reducing their unemployment compensation costs and obligations. In the next few months, employers should review personnel policies and procedures to make sure they are consistent with the changes to the law. Cafeteria Plan Deductions/Payments. Effective September 30, 2013, pre-tax salary deductions and payments made by employers to Section 125 cafeteria plans are no longer included as base...



  • Employing Home Care Assistance? The DOL Has Changed the Wage Rules.

    September 20, 2013

    On September 17, 2013, the U.S. Department of Labor (DOL) announced a final rule extending Fair Labor Standards Act (FLSA) minimum wage and overtime protections to nearly two million workers who provide home care assistance to the elderly, ill and disabled. The rule takes effect January 1, 2015. In announcing the rule, Secretary of Labor Thomas E. Perez stated, “Today we are taking an important step toward guaranteeing that these professionals receive the wage protections they deserve." Critics, on the other hand, believe that the new rule will harm many who need in-home care because they and their families will no longer...



  • U.S. Supreme Court Narrows Supervisor Liability Under Title VII

    July 22, 2013

    In Vance v. Ball State University, the U.S. Supreme Court recently reviewed a case in which an African-American employee claimed that her employer should be liable for racial harassment allegedly perpetrated by a co-worker because the co-worker functioned in a supervisory capacity. The Supreme Court upheld the lower court’s dismissal, finding that the co-worker was not a supervisor under Title VII of the Civil Rights Act (“Title VII”), and, therefore, the employer was not strictly liable for the co-worker’s alleged actions. In its decision, the Court narrowed the definition of “supervisor” for purposes of finding an employer vicariously liable for co-worker...



  • WERC Forwards Union Certification Election Rules to Governor ––– Walker Approves

    July 11, 2013

    On June 26, 2013, the Wisconsin Employment Relations Commission (WERC) re-initiated the annual union certification election rules and submitted them to Governor Walker for review and approval. The WERC’s emergency administrative rules were adopted pursuant to Sec. 227.24(1)1g, Stats. The approved rules will not be applicable to plaintiffs in Madison Teachers, Inc., et al. v. Scott Walker, et al., No. 11CV3774 (Dane Co.), certification granted by WI Supreme Court No. 2012AP2067, unless and until the Dane County Circuit Court’s decision is no longer in effect. For all other public employers, the WERC rules will apply once they become final. The rules...



  • Effective Immediately: New Laws Governing the Rehiring of WRS Annuitants

    July 2, 2013

    The 2013-2015 Biennial Budget Bill (Budget Bill), enacted as 2013 Wisconsin Act 20, made substantial revisions to the statutes governing Wisconsin Retirement System (WRS) annuitants who return to work for WRS participating employers after retirement. The Budget Bill was signed into law by the Governor on June 30, 2013, and published on July 1, 2013. The WRS was created, in part, to provide post-employment annuity benefits to participants who meet the requirements of Wis. Stat. § 40.23, including retirement from employment with a WRS participating employer. The statutes permit any Wisconsin public agency to participate in the WRS, but certain...



  • Interns: To Pay or Not to Pay?

    June 20, 2013

    Summer interns bring the advantage of additional staff resources — often free of compensation. However, employers should be wary of offering unpaid internships. Before proceeding with intern programs, employers should consider a recent federal court decision in which unpaid interns were re-categorized as compensated employees. Several cases have been filed in the past few years in which unpaid interns have claimed that they should have been compensated as employees under the Fair Labor Standards Act (“FLSA”). For example, the Charlie Rose Show settled a federal court claim with a group of 189 unpaid interns in December 2012. In February 2013, an...



  • Supreme Court Accepts Act 10 Case; Resolution Closer

    June 17, 2013

    On Friday, June 14, 2013, the Wisconsin Supreme Court announced that it has agreed to hear the constitutional challenges to the changes to public sector collective bargaining passed as 2011 Wisconsin Act 10. In accepting the appeal in Madison Teachers, Inc., et al. v. Walker, et. al. the Supreme Court has agreed to bypass the Court of Appeals and resolve the constitutional challenges to Act 10 once and for all. The Supreme Court goes into recess at the end of June; therefore, it is likely that the Court will not hear arguments on the case and issue a decision until...



  • Notice to Federal Contractors: New Census Data Required

    June 11, 2013

    The Office of Federal Contract Compliance (OFCCP) recently announced that affirmative action plans dated January 1, 2014 or later need to use 2010 Census data (as opposed to 2000 census data). Contractors who wish to use that data immediately may choose to do so. Read the OFCCP’s official announcement here. As a result, federal contractors will have to use the new Census data for availability, impact ratio analyses, and other matters associated with those plans no later than January 1, 2014. Gathering and interpreting Census data, and matching it to appropriate job descriptions and geographic data sets, may require more time...



  • FMLA: Employer Not Required To Permit Employee To Rescind Resignation And Resume FMLA Leave

    June 6, 2013

    The Sixth Circuit found that an employer did not interfere with an employee’s ability to take leave under the Family and Medical Leave Act (“FMLA”) when she attempted to rescind her resignation after returning from FMLA leave. The court found that the employee clearly communicated to her supervisor that she wanted to resign and that she made this decision without any coercion by the company. Thus, the company had no reason to interpret the employee’s statement that she would not be coming back to work as an indication that she was requesting further FMLA leave. Employee Returns to Work Without Restrictions...



  • ADA: Ability to Perform Essential Functions Should Be Measured at Time of Adverse Action, Not After Course of Treatment

    May 29, 2013

    The Seventh Circuit recently addressed an employee’s ability to perform the essential functions of a position, for purposes of determining whether the employee is “qualified” under the Americans with Disabilities Act (“ADA”). The court held that an employee’s ability to perform the essential functions of the position must be determined at the time of the adverse action, and not after employee has the benefit of any subsequent course of treatment. Attendance Is an Essential Function In Basden v. Professional Transportation, Inc., the Seventh Circuit reviewed an ADA complaint alleging wrongful termination and failure to accommodate. The Seventh Circuit held that the employee...



  • Internal Investigations: Different Standards For Avoiding Liability Versus Punitive Damages

    May 22, 2013

    In May v. Chrysler Group, LLC, the Seventh Circuit affirmed a district court’s judgment that an employer was liable for a hostile work environment claim related to ongoing harassment of an employee who was the continual target of racist, xenophobic, homophobic, and anti-Semitic graffiti, vandalism, and death threats. However, the court also vacated a $3.5 million dollar punitive damages award. Although the employer’s actions were not sufficient to halt the hostile work environment, the Seventh Circuit found that the somewhat lackluster approach taken by the company did not amount to reckless disregard of the employee’s right under Title VII of...



  • Consistently Applied Internal Investigation Procedures Defeat Race and National Origin Claims

    May 9, 2013

    The Seventh Circuit recently provided guidance as to what constitutes a legally-sufficient internal investigation procedure. In affirming the lower court’s dismissal of a race and national origin discrimination claim brought by a college teacher, the Seventh Circuit emphasized the importance of consistent, even-handed application of the internal investigation process. College Teacher Investigated for Anti-Semitic Remarks In Smiley v. Columbia College Chicago, the Seventh Circuit reviewed a race and national origin complaint filed by Suriya Smiley, a part-time instructor at Columbia College Chicago (“Columbia College”). Columbia College informed Smiley that she could no longer teach on its behalf after it investigated a complaint...



  • Reasonable Suspicion Drug Test Based on Mere “Perception” Is Not Discriminatory

    May 2, 2013

    In Berry v. Arcelormittal USA, LLC, the District Court for the Northern District of Indiana recently determined that an employer did not discriminate on the basis of race when it only required one of two employees engaged in a workplace conflict to undergo a drug test. The court found the opinion of one single supervisor to be an acceptable basis for a drug test because the written policy stated that “reasonable suspicion” could be based solely on the perception of one supervisor. Agitated Behavior Leads to a Drug Test Marcus Berry, an African-American employee, had worked periodically for Arcelormittal USA, LLC (“Arcelormittal”)...



  • Immigration Developments: The New I-9 and Recent Senate Bill

    April 30, 2013

    The U.S. Citizenship and Immigration Services (USCIS) recently announced that the official revised Employment Eligibility Verification Form (commonly referred as the I-9 form) is now available and that employers should begin using it immediately. The new form can be identified via a revision date of March 8, 2013 in the lower left hand corner and can be obtained at: http://www.uscis.gov/files/form/i-9.pdf. According to USCIS, the new form contains several improvements designed to reduce completion errors. These include: Additional data fields, including the employee’s foreign passport information (if applicable) and telephone and e-mail addresses. Improvements to the form’s instructions. A revised layout of the form, including...



  • ADA: Clear Job Duty Documentation and Careful Evaluation Establish That Plaintiff Is Not "Qualified"

    April 25, 2013

    The Seventh Circuit recently decided a case in which it found that the employee was not “a qualified individual with a disability” under the Americans with Disabilities Act (“ADA”) because she could not meet the lifting requirements of her position. Based on the principle that she did not qualify for ADA protection, the remainder of the plaintiff’s disability and accommodation claims were unsuccessful. Painstaking Documentation Pays Off In Majors v. General Electric Co., the Seventh Circuit reviewed the ADA claim of Renee Majors, a General Electric union employee with lifting restrictions who was denied an auditor position on two occasions because she...



  • Reasonable Accommodation Under The ADA: Court Sheds Light On Notice And Interactive Process Requirements

    April 18, 2013

    The Seventh Circuit recently issued an opinion providing some new guidance regarding the interactive process under the Americans with Disabilities Act (“ADA”). Specifically, the court emphasized that the interactive process was just that—a process and not a singular decision which could not be updated or altered. In Cloe v. City of Indianapolis, the Seventh Circuit reviewed the ADA claim of Nancie Cloe, an Unsafe Building/Nuisance Abatement Project Manager for the City of Indianapolis. During her employment, Cloe was diagnosed with multiple sclerosis (“MS”). Prior to her diagnosis, Cloe arranged for sweeps of abandoned, derelict, and unsafe properties. Cloe would walk the...



  • ADA: Employees Who Do Not Show Up Are Not Qualified for the Position

    April 15, 2013

    If an employee has an established medical condition, employers tend to be gun shy about disciplining the employee for absences, fearing that the employee may bring a complaint for failure to accommodate under the Americans with Disabilities Act ("ADA"). This fear is well-founded based on the employee protections provided by the ADA and pertinent state law. However, employers' hands are not completely tied when dealing with a chronically absent employee with a known medical condition. A recent decision by a U.S. District Court in the Fifth Circuit has held that attendance can be an essential function of a position. Therefore, an...



  • Your Disclaimers Don't Matter! The Seventh Circuit Expands the Reach of Successor Liability

    April 9, 2013

    When a company is sold in an asset sale (as opposed to a stock sale), the buyer acquires the company's assets but not necessarily its liabilities. Whether the liability is passed to the buyer is referred to as "successor liability". In Wisconsin--as in most states--a buyer must expressly or implicitly assume liabilities to be considered a successor. However, if the liability is based on a violation of certain federal labor and employment laws, the federal common law standard for successor liability will be applied. The federal standard is more favorable to employees than state law standards and generally will result...



  • When An Internal Complaint Is Unrelated To Discrimination: Balancing The Seventh Circuit And The EEOC

    March 27, 2013

    On March 21, 2013, the Seventh Circuit Court of Appeals upheld the dismissal of a complaint in which the plaintiff claimed that she was fired in retaliation based on race and sex after making an internal complaint that she was attacked by a co-worker. The Seventh Circuit issued a decision discussing what constitutes protected activity under Title VII of the Civil Rights Act ("Title VII"). When read in tandem with the EEOC's recent "fact sheet" discussing Title VII and domestic violence, it becomes clear that employers should take a deeper look at the substance of any internal complaint when considering...



  • Non-Enforcement Period Still In Effect for Insured Plan Nondiscrimination Rules

    March 20, 2013

    As most Wisconsin employers know by now, the Patient Protection and Affordable Care Act (the "ACA") introduced new nondiscrimination requirements for insured group health plans; however, many employers remain confused about the impact of these rules. The simple answer is that no formal implementation must commence until the administrative agencies charged with enforcing these rules publish guidance on the subject. This client update explores and examines the information currently available with regard to the ACA's nondiscrimination rules, the continued delay of the insured plan rules, and the implications for insured plan sponsors. Nondiscrimination Rules Under the self-insured nondiscrimination rules, self-insured...



  • Appeals Court Denies Request to Grant Stay; Act 10 Debate Continues

    March 14, 2013

    The Wisconsin Court of Appeals issued an Order on March 12, 2013, denying the State Attorney General's request to stay the Dane County Circuit Court decision of Judge Colas that declared certain portions of Act 10 unconstitutional. The Order did not address the merits of the constitutional issues on appeal, but only dealt with the motion to stay. While the denial of the stay means Judge Colas' decision remains in place for now, the Court of Appeals did not resolve the question of whether that Dane County decision has any statewide application, but merely recognized that the debate on that point...



  • New FMLA Poster Required by March 8, 2013

    February 15, 2013

    On February 6, 2013, the Department of Labor's Wage and Hour Division issued final FMLA regulations which take effect on March 8, 2013. Most of the new regulations deal with seldom used FMLA provisions such as military caregiver leave and qualifying exigency leave for parental care, and job-protected leave for airline personnel and flight crews. The new regulations mean that an updated FMLA Poster should be used starting no later than March 8, 2013. The poster may be downloaded for free from the DOL website by clicking here. DOL has also prepared a helpful comparison of the 2008 regulations and the...



  • NLRB Appointments Deemed Unlawful, Board Without A Quorum to Act

    January 30, 2013

    In Noel Canning v. NLRB, Dec. No. 12-1115 (D.C. Cir., 01/25/2013), the United States Court of Appeals for the District of Columbia ruled President Obama's 2012 appointments to the National Labor Relations Board ("Board") were made in violation of the Recess Appointments Clause of the United States Constitution. The invalid appointments related to three members of the five member Board. With three out of five members of the Board having been unlawfully appointed, the Board lacked a quorum and could not exercise its authority under the National Labor Relations Act. As a result, the Court determined that the decision of...



  • Federal Appeals Court Rules That Act 10 Is Constitutional

    January 21, 2013

    The United States Court of Appeals for the Seventh Circuit has ruled that 2011 Wisconsin Act 10 is constitutional in an opinion released on Friday, January 18, 2013. The Seventh Circuit's decision reviewed a decision that had been issued by the United States District Court for the Western District of Wisconsin in the spring of 2012. The District Court had concluded that the majority of Act 10 was constitutional, but also found that those portions of Act 10 that required general municipal employees' representatives to face annual recertification elections and that banned union dues deduction were unconstitutional. The Seventh Circuit concluded...



  • JOBS Act Update: Proposed Rules Under Federal Law Expanding Ability to Raise Money

    January 17, 2013

    The Jumpstart Our Business Startups Act (or "JOBS Act") was signed into law on April 5, 2012. Its intent was to stimulate job growth by making it easier and less expensive for smaller businesses, such as start-ups and entrepreneurial companies, to raise capital. However, due to delay in enactment of rules required to effectuate key provisions, its implementation remains uncertain. Highlights of the JOBS Act's key provisions include: Reporting Companies. Increase of threshold at which a privately-held company is required to register with the Securities and Exchange Commission ("SEC") to become a publicly reporting company under the Securities Exchange Act of 1934...



  • School Safety Plans and Access to School Buildings

    January 7, 2013

    As the country watched the tragic events unfold in Newtown, Connecticut, on Friday, December 14, 2012, Wisconsin's school district employees, school students, and the public began to raise questions of their own about the school safety plans in place in their local school districts. Many also posed questions about a school district's ability to prohibit certain individuals from having access to school buildings and other property. No single initiative can ensure pupil safety and compliance with relevant school safety statutes cannot guarantee that hazards to pupils' welfare will never surface. Nevertheless, at a minimum, school officials need to be in a...



  • Fiscal Cliff Avoided

    January 4, 2013

    The American Taxpayer Relief Act of 2012 (H.R. 8, as amended) (the "Act") was passed by Congress on January 1, 2013 and was signed into law by President Obama on January 2nd. The Act extends various tax rate cuts (the "Bush Tax Cuts") that were set to expire this year, which would have increased taxes for all taxpayers. The Bush Tax Cuts were 2001 and 2003 tax rate cuts on capital gains, ordinary income and qualified dividends, which were originally scheduled to sunset in 2010 but were extended through the end of 2012. The Act includes marginal income and capital gain...



  • Arbitrators' Awards Arrive

    December 19, 2012

    Interest arbitrators' awards covering public safety employees have started to trickle in to the WERC. Public employers have struggled to balance the "two class" system of general and public safety employees that was the by-product of Acts 10 and 32. Many public employers seek to provide the same benefits to all employees. The first award, issued more than one year ago struck fear in the hearts of public employers throughout the state. In that case, the arbitrator categorically rejected the argument that the internal comparables justified requiring deputies to contribute to WRS under the county's offer. This case is summarized below: A....



  • Is Your Harassment Investigation...Harassing?

    October 1, 2012

    When conducting an internal investigation of a harassment complaint, employers typically instruct interviewees that they must keep the information discussed during the interview confidential so the employer can carry out a fair and accurate investigation. ...



  • Supreme Court Upholds Challenged Health Care Reform Provisions

    June 29, 2012

    The U.S. Supreme Court issued an opinion yesterday upholding the constitutionality of both the so-called individual mandate and the expansion of Medicaid under the Patient Protection and Affordable Care Act of 2010 (the "Act"). Couched within references to the structure of federalism and the history of the Supreme Court's "limited role" within it, a 5-4 majority opinion authored by Chief Justice Roberts held that the individual mandate is a constitutional exercise of Congress's power to tax. The mandate requires an individual to pay a "shared responsibility payment" if he or she fails to purchase basic health insurance. Under a more...



  • The NLRB Cares Deeply About Your Social Media Policy

    June 27, 2012

    The National Labor Relations Board ("NLRB") recently issued a report that analyzes seven different social media policies to determine whether they violate workers' rights under Section 7 of the National Labor Relations Act ("NLRA"). The NLRB specifically discussed issues with respect to protection of confidential information, non-public information, "friending" co-workers, seeking permission before posting to social media sites, complaint procedures, and respectful use of social media. Why Does the NLRB Care? Section 7 of the NLRA grants most employees (not just union members) the right to discuss workplace issues, including possible formation of a union. If Section 7 is violated,...



  • Union Dues Deduction In a Post-Act 10 World

    June 22, 2012

    Municipal employers must exercise caution with regard to deducting union dues from employee paychecks. 2011 Wisconsin Act 10 (Act 10) changed the scope of bargaining and representation for public sector employees and their unions. Provisions in Act 10 made it illegal for municipal employers to continue the longstanding practice of allowing employees to pay union dues through a payroll deduction and prohibited fair share union membership. In addition, Act 10 required unions to submit to annual certification elections; the first of which occurred in November and December 2011. Shortly after Act 10 became effective in June 2011, several unions brought...



  • Criminal Background Checks: The EEOC Changes the Landscape

    May 17, 2012

    On April 25, 2012, the U.S. Equal Opportunity Commission ("EEOC") issued new enforcement guidance regarding use of criminal background checks and arrest/conviction disclosures. The revised guidance offers in-depth analysis of the disparate impact of arrest and conviction records on racial and ethnic minorities. The enforcement guidance also provides employers with clear, albeit somewhat burdensome, rules on the use of criminal background checks and self-disclosure. Additionally, the enforcement guidance explains how employers can establish a defense to claims of disparate impact by showing that criminal background checks were job related and consistent with business necessity. Because Title VII of the Civil...



  • EEOC Raises Hurdles to Employers' Defense of Age Discrimination Claims

    April 25, 2012

    The U.S. Equal Employment Opportunity Commission (EEOC) recently issued new regulations that complicate an employer's ability to protect itself from disparate impact claims brought under the Age Discrimination in Employment Act (ADEA). Although it was already known that an employer can defend against an ADEA disparate impact suit if it made the challenged job action based on "reasonable factors other than age," the new regulations add several new requirements to proving that these factors are reasonable. The discretionary nature of these factors will make the employers' decision-making processes more complex with respect to hiring, firing, promotion and assignment. These complications...



  • NLRB Postpones Implementation of Posting Rule

    April 20, 2012

    The National Labor Relations Board (NLRB) has issued a press release stating that its regional offices will postpone the implementation of the controversial posting requirement rule. This rule would have required all private sector employers subject to the Board's jurisdiction (which is almost all private employers) to post a notice informing employees of their rights under the National Labor Relations Act, including seeking union organization. A previous client alert discussed the background and issues related to the notice requirement; NLRB Issues Final Posting Rule Prior postponements by the Board resulted in the April 30 deadline and the current announcement was...



  • Compensatory and Punitive Damages Once Again Precluded in State Court Employment Discrimination Actions

    April 18, 2012

    The Wisconsin Fair Employment Act (WFEA) returned to its pre-2009 status on April 5, 2012, when Governor Walker signed a bill repealing a 2009 amendment that had allowed employees who prevailed on a discrimination claim to sue their employers for compensatory and punitive damages in state court. The WFEA prohibits employment discrimination based on an individual's "age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious...



  • The Rules Governing Negotiations in a Post-Act 10 Environment

    April 10, 2012

    On Friday, March 30, 2012, Governor Walker approved the administrative rules that provide guidance to municipal employers about how to bargain over "total base wages," under 2011 Wisconsin Act 10. This Client Alert is intended to provide a summary and some practical information regarding these rules, which appear at Wis. Admin. Code § ERC Chapter 90. It is important to note that the approved version of Wis. Admin. Code § ERC Chapter 90 differs substantially from the draft version of the rules that was prepared by the Wisconsin Employment Relations Commission (WERC) and sent to the Governor's office in February...



  • Wisconsin Legislation Regulates the Use of Seclusion and Physical Restraint With Students

    March 22, 2012

    After more than two decades of state-wide discussion relating to the use of seclusion and physical restraint with public school students, on March 19, 2012 Senate Bill 353 was signed by the Governor creating 2011 Wisconsin Act 125. The law becomes effective September 1, 2012 and will be implemented for the 2012-13 school-year. Act 125 creates two new statutory sections: Wis. Stats. 115.787(2)(i), relating to the use of seclusion and restraint with students receiving special education services; and Wis. Stats. Sec. 118.305 relating to the use of seclusion and physical restraint with students in the regular education programs. The law...



  • WERC Issues Revised Union Election Rules

    September 21, 2011

    On September 15, 2011 the Wisconsin Employment Relations Commission (WERC) published final administrative rules regarding union elections required under 2011 Wisconsin Acts 10 and 32 after receiving Governor Walker's approval. These rules do not apply to public safety or transit employees. This chart below will help you determine when a union election will take place. If a union misses the filing deadline, it will be decertified. If a union is decertified, it will no longer be able to represent the employees for at least one year. ElectionApplicable Bargaining UnitLast Date of Union PetitionDate of ElectionRound 1State and municipal general employees...



  • NLRB Issues Final Posting Rule

    September 8, 2011

    On Aug. 30 the National Labor Relations Board published a final rule requiring that employers covered by the National Labor Relations Act (NLRA) post a new notice advising employees of their right to engage in collective bargaining activity. The rule states that by Nov. 14, 2011, all NLRA-covered employers must display the poster in the workplace. If an employer commonly posts notices on its intranet, the notice must be posted there as well. However, employers are not required to transmit the rule or poster by email or text messaging. The NLRA applies to most private sector employers, not just those...



  • WI Supreme Court Issues Landmark Decision on the Application of the Public Records Law to Employee E-mail

    July 21, 2010

    E-mail is still the most commonly used of the many new forms of electronic media and communications options. Virtually all employees have access to computers and have assigned e-mail accounts through their employment. E-mail communication, while beneficial, is not without its drawbacks. The proliferation of communications generated in this form, coupled with the unique mass archiving systems typically used to maintain such communications has created a complicated situation for public entities in relation to public records. In a case involving the Wisconsin Rapids School District, the Wisconsin Supreme Court ruled for the first time that “purely personal” e-mails of public employees...



  • Attorney General Discusses an E-mail Walking Quorum

    July 21, 2010

    In the landmark case of State ex rel Newspapers v. Showers Wis 2d 77(1987), the Wisconsin Supreme Court first warned public officials of the dangers of engaging in a “walking quorum”—a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum. Recognizing that a walking quorum may produce a predetermined outcome and thus render the subsequently held public meeting a mere formality, the court warned that any attempt to circumvent a public meeting through use of a walking...



  • The Perils of Social Media

    July 21, 2010

    The evolution of electronic social media presents numerous complications in regulating employee conduct which may cause problems for the public sector employer. Employers must carefully balance liability considerations with privacy issues when regulating an employee's non-work related communications on work-issued computers, cell phones or other electronic devices. It is inevitable that municipal employers will hire employees, or candidates will be elected, who use Facebook, MySpace, Twitter, Friendster, LinkedIn or some other form of social media. However, public entities need to consider the potential liability and risk due to employee activities on these sites, both on-duty and off-duty. Municipal employers face potential liability...



  • Attorney General Addresses a Town Chair's "Google Group"

    July 21, 2010

    Background It is becoming increasingly common for elected officials to use electronic media such as websites or chat rooms to communicate with their constituents. While providing information or a forum to the voters is well intended, the sites and communications are likely public records, and the information exchanges may even constitute public meetings subject to the requirements of the Wisconsin Open Meetings Law. The attorney general considered some of the potential pitfalls of using the electronic media as a constituent communication forum in an informal opinion regarding whether the public is entitled to access a private “Google Group” website maintained by an...



  • U.S. Supreme Court Addresses Employee Privacy in the Context of Text Messages on Publicly-Owned Pagers

    July 21, 2010

    The Wisconsin and United States Supreme Courts have made it clear that when public sector employees check into work, they do not leave their privacy rights at the door. Searches and seizures of an employee’s private property and affects are subject to Fourth Amendment restraints. Whether an employee has a reasonable expectation of privacy has to be determined on a case by case basis taking into consideration the “operational realities” of the workplace. A typical way to address the expectation of privacy is to develop policies that instruct the employees of any limitations on their privacy. However, particularly in dealing...



  • WERC Renders Decision on the Current Role of Police & Fire Commissions in Discipline Cases

    December 3, 2009

    In a decision dated December 1, 2009, the Wisconsin Employment Relations Commission (WERC) has decided that a municipal employer may no longer maintain existing language in a collective bargaining agreement which uses the procedures of § 62.13(5) for review of discipline police or fire department employees, if the union objects upon the expiration of the contract. This is the first decision from the WERC regarding the application of § 62.13(5) and bargaining since the budget law change two years ago. In City of Menasha, the WERC held that a municipal employer cannot propose contract language (or maintain existing language) which...



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