Publications: Municipal Labor Counsel


  • Seventh Circuit Rules Sexual Orientation Workplace Discrimination Is Illegal

    April 5, 2017

    In a precedent setting decision, Hively v. Ivy Tech, the Seventh Circuit Court of Appeals, the federal appeals court having jurisdiction for Wisconsin, Indiana, and Illinois, ruled on April 4, 2017, that Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination on the basis of sexual orientation. Title VII protects employees from discrimination based on “race, color, religion, national origin or sex.” The Second and Eleventh Circuits previously ruled that the term “sex” referred only to whether an employee was a male or female. In Hively, the Seventh Circuit instead expanded the definition of “sex”...



  • 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...



  • 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...



  • 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...



  • 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...



  • 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...



  • Three New Laws Impact School Districts

    April 21, 2016

    Governor Scott Walker recently signed three education-related bills (below) that will impact Wisconsin school districts in a variety of ways. School districts should review and revise their policies, procedures and practices to ensure that they are consistent with the new laws. A. Changes to Special Needs Scholarship Program Act 289 amends and creates new provisions for Section 115.7915, Wis. Stats., which is the Special Needs Scholarship law, newly enacted in July 2016. Act 289 now allows a student to apply at any time during the school year for a scholarship under the Special Needs Scholarship Program and changes the selection of recipients...



  • 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...



  • Change in Sales and Use Tax Affects Contractors, Municipalities and Nonprofits

    February 4, 2016

    Certain local Wisconsin governmental entities and nonprofit organizations have historically been exempt from payment of sales and use tax. Under a change in Wisconsin law which took effect on January 1, 2016, contractors may purchase construction materials on behalf of certain tax-exempt entities and organizations without paying Wisconsin sales or use tax. In essence, as long as the construction materials are incorporated into a construction project for those tax-exempt entities, the contractor will get the benefit of its client’s tax exemption. Before the change in the law, the contractor would be required to pay sales or use tax on the...



  • 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...



  • 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....



  • 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...



  • 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,...



  • 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...



  • "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...



  • 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...



  • 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...



  • 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....



  • 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...



  • 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...



  • 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...



  • 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...



  • 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...



  • Public Union Recertification Elections Still On Hold

    November 5, 2013

    The Wisconsin Court of Appeals has refused to suspend an order issued just over a week ago by Dane County Circuit Court Judge Juan Colas. Judge Colas found the Wisconsin Employment Relations Commission (WERC) in contempt of court for proceeding with union recertification elections around the state and ordered the WERC to cease and desist from holding the elections. This means it is now up to the Wisconsin Supreme Court to decide whether the WERC will be allowed to conduct union recertification elections. The Court of Appeals focused on technical issues that are related to review of contempt orders, rather...



  • WERC Found in Contempt for Enforcing Act 10

    October 24, 2013

    In a decision issued earlier this week, Judge Juan Colas of the Dane County Circuit Court found the Wisconsin Employment Relations Commission (WERC) Commissioners in contempt of court for enforcing 2011 Wisconsin Act 10. In September of 2012, Judge Colas ruled that certain provisions of Act 10 were unconstitutional, including the requirement that unions face recertification elections each year, the prohibition against making union dues deductions, and limits on bargaining over employee wages. That decision was appealed to the state court of appeals. The court of appeals ultimately certified the case to the state Supreme Court, where a decision is...



  • How to Post and Distribute the Notice of WERC’s Annual Certification Election

    October 17, 2013

    In school districts[1] where the labor organization representing district employees filed a timely Petition for an Annual Certification Election with the Wisconsin Employment Relations Commission (WERC), the school district has an obligation to post and distribute the Notice of Election form, which is provided to the school district by the WERC and which announces that elections will occur via secret telephonic ballot between November 1, 2013, and November 21, 2013, to determine “whether at least 51% of the employees in the bargaining unit want to continue to be represented…for purposes of collective bargaining” by the labor organization identified in the...



  • Risky Choices In Unused Sick Leave Benefit Plans

    July 31, 2013

    Employers that convert or pay out certain leave benefits may be stuck with unexpected tax results or even commit violations of the tax code, according to a July 9, 2013 tax compliance newsletter for federal, state, and local government employers issued by the Internal Revenue Service (“IRS”). The newsletter’s lead article serves to remind governmental employers of its long-held position that certain leave conversion benefit plan features may result in unexpected tax treatment and violations. Specifically, if an employee is allowed the option of receiving the benefit in cash or as another form of benefit, an otherwise tax-free benefit could...



  • 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...



  • 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...



  • 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...



  • 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...



  • 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. ...



  • High Court Rules Municipalities on the Hook for Costs of Public Records Requests

    July 2, 2012

    The Wisconsin Supreme Court ruled Wednesday, June 27, 2012 that public entities must bear the expense associated with redacting confidential information from documents in response to public records requests. The Supreme Court in Milwaukee Journal Sentinel v. City of Milwaukee held that the public records law provides no authority to pass on the cost of performing required redactions of records to the requestor, leaving that cost solely with the public entity. State Supreme Court Justice Roggensack and three other Justices wrote a separate opinion in which they agreed that the law as currently written does not include authority to charge...



  • 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...



  • 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...



  • 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...



  • Municipal Solutions - Introduction

    July 21, 2010

    The universal proliferation of electronic communication has significantly affected the public sector workplace. Most, if not all, administrative municipal employees are provided networked computers with e-mail and internet access to complete their assigned tasks. Public sector employees commonly carry work-issued cell phones or pagers, and most municipalities have websites where they publish agendas and respond to public inquiries electronically. Unfortunately, the rapid growth of electronic communication has, in some respects, outpaced the ability of the legislature and courts to keep up with definitive rules, regulations and decisions to guide employers in managing the rights and obligations created by this new...



  • 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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