Publications: School and Higher Education


  • United States Supreme Court Provides New Articulation of Free Appropriate Public Education Standard

    April 10, 2017

    In a much anticipated special education decision, the United States Supreme Court vacated and remanded the 10th Circuit Court of Appeal’s decision in Endrew F. v. Douglas County School District. The Court stated, in the unanimous opinion written by Chief Justice John Roberts, that school districts need to ensure that a student’s IEP (Individualized Education Program) is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” The facts of the case are as follows: A Colorado autistic child attended public school for several years and began to have behavioral problems. The parents believed “his...



  • 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”...



  • 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,...



  • Transgender Student Guidance Withdrawn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...



  • 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...



  • 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...



  • 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...



  • 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...



  • 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...



  • 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...



  • Cybercrime – Costly Threats to Your Intellectual Property

    December 29, 2015

    For most people, the terms “cybersecurity” and “cybercrime” conjure up visions of futuristic and rather ill-defined or abstract activities. But the trending attacks on businesses — of all sizes — are neither futuristic nor abstract. They are clear and present dangers to your intellectual property. First, definitions – “Cybersecurity” is the state of being protected against the criminal or unauthorized use of electronic data, or the measures taken to achieve this. “Cybercrime” is any crime or criminal activity that is conducted via the Internet or some other computer network. Second, a question – Is the threat real? The simple answer is...



  • 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...



  • 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...



  • 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...



  • Protecting Student Privacy While Using Online Educational Services: Model Terms Of Service

    March 9, 2015

    A number of providers of online educational services and mobile applications rely on a Terms of Service Agreement (TOS) which require users to click to accept an agreement in order to access the service or application for the first time. Once clicked, the terms will likely govern what information the provider may collect from or about students, what the provider can do with the information, and with whom they may share it. Depending on the content, these agreements may lead to violations of the Family Educational Rights and Privacy Act, the Protection of Pupil Rights Amendment, or other laws. To protect...



  • 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...



  • OCR Issues Additional Guidance On Athletics For Students With Disabilities

    January 10, 2014

    On January 25, 2013, the U. S. Department of Education, Office of Civil Rights (OCR), issued guidance related to the participation of students with disabilities in extracurricular athletics. The guidance raised a variety of questions for school districts related to the scope of the guidance. The National School Boards Association (NSBA) issued a formal letter to the OCR on May 21, 2013 seeking to clarify the guidance in terms of its application in four basic areas: Equal opportunity, individualized inquiry, equal opportunity in the context of the Individuals With Disabilities Act and the creation of new athletic opportunities. Davis &...



  • Registered Sex Offenders Must Now Provide Notice Before Visiting Schools

    December 18, 2013

    2013 Wisconsin Act 88 (Act 88) requires the registered sex offender to notify the District Administrator or his/her designee (Administrator) of the specific date, time and place of the visit and his/her status as a registered sex offender. This new law, which is effective as of December 15, 2013, prohibits registered sex offenders from being in any school building, on any school grounds, school recreation area, or school athletic field, or on any school property owned, used, or operated for school administration unless the registered sex offender notifies the Administrator. Act 88 does not prescribe a particular method of notification...



  • 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...



  • State Budget Imposes New Requirements for School District Community Service Funds

    July 22, 2013

    Wisconsin school districts are required to comply with new levy limits and reporting requirements for school district community service funds (Fund 80) under the 2013-15 State Budget. State law authorizes school boards to establish community program service funds and provides that school districts can “[e]stablish and maintain community education, training, recreational, cultural or athletic programs and services, outside the regular curricular and extra-curricular programs for pupils, under such terms and conditions as the school board prescribes.” The statutes further provide that school boards may establish and collect fees to cover all or part of the costs of such programs and...



  • 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...



  • New Guidelines for School Athletes With Disabilities

    June 27, 2013

    Athletic opportunities provide important health and social benefits to students, particularly those with disabilities. However, a federal government report found that students with disabilities are not being afforded an equal opportunity to participate in extracurricular athletics in public schools. That has prompted the U.S. Department of Education’s Office for Civil Rights (OCR) to issue new guidelines to assist schools in ensuring that students with disabilities have equal opportunities to participate in athletics as students without a disability. The OCR guidelines say school districts must offer extracurricular athletics in a way that give qualified students with disabilities an equal opportunity to participate...



  • 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...



  • 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....



  • Municipal Employee Representation During Employer Meetings After Act 10

    September 18, 2012

    2011 Wisconsin Act 10 (Act 10) dramatically changed public sector collective bargaining in Wisconsin, but it did not eliminate a municipal employee's right to representation during a meeting with the employer that might result in disciplinary action. Act 10 limited mandatory subjects of bargaining to base wages and eliminated fair share agreements. However, it did not change an employee's right to be represented during a meeting with his/her employer, when the employer compels the employee's attendance and intends to question the employee, when the employee has a reasonable belief that the meeting may lead to disciplinary action, and when the...



  • 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...



  • 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...



  • 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...



  • 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...



  • All School Employees Are Now Mandatory Reporters of Child Abuse

    December 21, 2011

    All school employees are now required to report child abuse and neglect under a new state law and can face stiff penalties for failing to do so. The new law also requires that school boards train school employees to identify children who have been abused or neglected and about the laws and procedures governing the reporting of child abuse and neglect. On November 23, 2011, the Governor signed 2011 Wisconsin Act 81 (Act 81) into law. It is effective December 9, 2011. Before this new law was enacted, Wis. Stat. §48.981(2)(a) obligated school teachers, school administrators, and school counselors to...



  • School Payroll Practices Will Be Affected By Recent Legislation

    July 12, 2011

    2011 Wisconsin Act 10 changes the way that state statutes apply to wage payments that are made to many school employees. Under current state law, every employer is required to pay every employee all wages earned on at least a monthly basis. In this regard, state statutes specify that wages must be paid for all wages earned "not more than 31 days prior to the date of payment." Wis. Stat. § 109.03(1). The same statute, however, includes exceptions to this rule that have historically applied to any number of school employees. For example, this requirement has not applied to employees...



  • EPA Recommends Schools Replace PCB-Containing Fluorescent Fixtures

    January 6, 2011

    The Environmental Protection Agency (EPA) recently set its sights on older fluorescent lighting fixtures as part of its effort to address exposure to PCBs (polychlorinated biphenyls) in schools. If a school was built before 1979 or has not had a complete lighting retrofit since 1979, the EPA recommends replacing all PCB-containing fluorescent light ballasts. When a ballast breaks, PCBs leak and contribute to increased levels of the chemical in the air students breath. PCBs are toxic chemicals that can affect the immune system, nervous system and endocrine system, and they are potentially cancer causing. PCBs were widely used in electrical...



  • Contribution Limits for 403(b) Plans Remain Unchanged for 2011

    December 16, 2010

    School districts responsible for administering 403(b) plans may also be responsible for communicating with employees regarding eligibility and plan features for the 2011 plan year, including the limits on contributions to 403(b) accounts. The IRS has announced the retirement plan contribution limits that will apply for 2011, and for 403(b) purposes, these limits remain unchanged from 2010. As a result: The elective deferral limit for employees remains at $16,500 (plus a service adjustment, if applicable); The limit on annual additions to a 403(b) plan (which is the combination of all employer contributions and elective deferrals to an employee’s 403(b) accounts)...



  • Federal Court Declares School Administrator Contract Void

    August 4, 2010

    On June 18, 2010, the United States District Court for the Western District of Wisconsin ruled that a school administrator’s employment contract was not enforceable under Wis. Stat. § 118.24(1).1 The court held that the enforcement of a 2009-2011 contract that had been signed at the same time as a 2007-2009 contract would violate the statutory requirement under Wis. Stat. § 118.24(1), which limits administrator contracts to two years in length. Therefore, the 2009-2011 contract was void. In the Klaus case, the Eau Claire Area School District Board of Education investigated an allegation that an administrator in the district (Klaus)...



  • Is Your School District Prepared for H1N1?

    January 5, 2010

    School districts across the state are preparing for the probable outbreak of H1N1 in their district. Unfortunately, schools are a hotbed for the spread of H1N1 influenza and children have been disproportionately impacted by the virus. Questions abound as schools consider how a school closing due to H1N1 affects contracts, legal requirements and general school operations. The following represents guidance for school districts in planning for a possible school closing:Review employment contracts and collective bargaining agreements. Each employment contract and collective bargaining agreement must be reviewed for the stated number of contract days, for any language addressing the event of...



  • Self-Insured Plans Must Incorporate New Coverage Requirements

    January 5, 2010

    Recent legislative developments will have a significant impact on self-insured governmental health plans, including self-insured plans sponsored by school districts. Specifically, 2009 Wisconsin Act 14 and 2009 Wisconsin Act 28 (better known as the Budget Bill) will implement new coverage requirements and expand the class of individuals eligible as dependents under the plan. Governmental sponsors of self-insured health plans will need to take prompt action to review plan documents and make any necessary amendments.Act 14 contains new coverage requirements related to hearing aids and cochlear implants. Self-insured governmental health plans are required to cover the cost of hearing aids and...



  • Civil Rights Data Collection Focuses on the Use of Restraint and Seclusion in Schools

    January 5, 2010

    The use of seclusion (forms of "time out") and the use of physical restraint with students in the educational environment are currently the subject of nationwide debate. Legislators on both the state and federal level are considering the enactment of statutes to regulate the use of seclusion and restraint with students in the regular education and special education settings.On September 11, 2009, the US Department of Education Office for Civil Rights (OCR) provided public notice of its decision to start collecting data relative to school district seclusion and restraint practices as a part of its ongoing Civil Rights Data Collection...



  • EEOC Releases New Posting Requirements

    January 5, 2010

    Public school districts are among those employers required to conspicuously post certain workplace notices describing workers’ rights under federal anti-discrimination laws. School districts generally comply with this requirement by posting the U.S. Equal Employment Opportunity Commission’s (EEOC) standard poster entitled “EEO is the Law,” or a substantially similar document.The EEOC has now revised its “EEO is the Law” poster to reflect recent changes in federal anti-discrimination laws. Specifically, the EEOC recently updated its poster to address the enactment of the ADA Amendments Act of 2008 and the Genetic Information Nondiscrimination Act of 2008, as well as changes to laws applicable...



  • Are You Prepared to Bargain Over Teacher Preparation Time?

    August 11, 2009

    Governor Doyle recently signed 2009 Wisconsin Act 34 into law, which requires that preparation time be treated as a mandatory subject of bargaining. The new law reverses a Wisconsin Supreme Court decision that held that a guaranteed amount of preparation time was a permissive subject of bargaining. Dodgeland Education Association v. WERC, 250 Wis.2d 357 (Wis. 2002).The Act defines “preparation time” as: “…time spent during the school day, separate from pupil contact time, to prepare lessons, labs, or educational materials, to confer or collaborate with other staff, or to complete other administrative duties.” The new law is not effective immediately,...



  • Wisconsin Extends FMLA Benefits to Include Domestic Partners

    August 4, 2009

    When Governor Doyle signed the 2009-2011 biennial budget on June 29, 2009, several basic legal protections previously available only to married couples were made available to same-sex couples. Among these legal protections is the right to exercise leave under Wisconsin’s Family and Medical Leave Act (“WFMLA”) in order to care for a domestic partner or the parent of a domestic partner. Same-sex couples will be able to identify themselves as domestic partners either through a county registry, which will be available beginning August 3, or through satisfying qualifications for an “unregistered” domestic partnership. In addition to the right to WFMLA...



  • Supreme Court Affirms Private School Reimbursement Option Under the IDEA

    August 4, 2009

    On June 22, 2009 the U. S. Supreme Court confirmed that parents can seek reimbursement for the cost of private tuition under the Individuals with Disabilities Education Act (IDEA) even if their children have not previously received special education services through a public school. Forest Grove Sch. Dist. vs. T. A., 109 LRP 36046 (U. S. 2009). The Supreme Court held that the IDEA’s reimbursement provision does not preclude a court’s broad authority under the IDEA to grant relief as it determines appropriate, including private school tuition reimbursement. The Court recognized that conditioning private school tuition reimbursement on a student’s...



  • Economic Stimulus Package Creates New Employee Whistleblower Protections

    August 4, 2009

    Earlier this year the American Recovery and Reinvestment Act of 2009 (ARRA) was enacted to address the current economic challenges facing our country. Contained in the ARRA are new whistleblower protections for employees of “non-federal employers” receiving stimulus funds, including public school districts and their contractors and subcontractors. The ARRA’s whistleblower protections prohibit covered employers from discharging, demoting, or otherwise discriminating against an employee in retaliation for disclosing information the employee reasonably believes is evidence of:Gross mismanagement of an agency contract or grant relating to covered fundsa gross waste of covered fundsa substantial and specific danger to public health or...



  • Wisconsin Supreme Court Upholds Arbitrator's Determination that Grievance was Timely Filed

    August 4, 2009

    Although nearly a year passed between a teacher’s knowledge of her inaccurate salary and the filing of her grievance, the Wisconsin Supreme Court deferred to an arbitrator’s finding that her grievance was timely filed. In Baldwin-Woodville Area School District v. West Central Education Association – Baldwin-Woodville Unit, 2009 WI 51, the Wisconsin Supreme Court considered whether the arbitrator exceeded his authority by perversely misconstruing the collective bargaining agreement. The Court found the sequence of events in this case particularly important. In 2002, the Baldwin-Woodville School District hired a teacher and her initial placement on the salary scale accounted for eight...



  • U.S. Supreme Court Invalidates Strip Search of Pupil But Recognizes School District Officials' Discretion

    August 4, 2009

    The United States Supreme Court recently determined that a school district’s strip search of a thirteen year old pupil was unconstitutional, but in the process, expressed strong support for school district officials’ right to conduct searches when they have a reasonable suspicion that contraband may be found. In Safford Unified School District #1 et al., v. Redding, 129 S.Ct. 2633 (Jun. 25, 2009), the U.S. Supreme Court considered a case involving a thirteen year old pupil, who had been searched on suspicion that she brought prohibited prescription and over-the-counter drugs to school. The pupil, Savana Redding, was summoned to the...



  • New Bargaining Law: New Opportunities

    July 14, 2009

    OverviewGovernor Doyle signed the 2009-11 state budget (2009 Wis. Act 28) into law on June 29, 2009, which included several changes to Wisconsin’s Collective Bargaining Law for school districts. Most significantly, the bill repealed the 16-year old Qualified Economic Offer (QEO) Law and reinstated final-offer, binding arbitration as the way to resolve collective bargaining disputes between school districts and teachers.Highlights of the New Collective Bargaining Law IncludeRepeals the QEO law immediately. (Effective June 30, 2009).Eliminates the greatest weight factor of revenue controls and greater weight factor of local economic conditions from consideration by arbitrators in school district arbitration cases.Permits contracts...



  • SAA Releases Analysis of Collective Bargaining Proposals

    April 9, 2009

    School Officials Are Right To Be Wary Of QEO Lobbying EffortsThe Governor’s budget proposal for 2009-11 has again proposed abolishing the Qualified Economic Offer (“QEO”) in teacher negotiations. To be sure, there’s plenty to be said about a budget that would remove the QEO limits on teacher salary increases, without reforming school financing, against the backdrop of an estimated 5.7 billion dollar state deficit, at a time when economic recession has taxpayers pressed to their limits. But while public debate is often focused on whether the QEO should stay or go, an equally compelling and perhaps more immediate issue is...



  • The ADA Cannot Force Employers to Violate Their Labor Agreement in the Name of Reasonable Accommodation

    April 7, 2009

    On December 4, 2008, the Seventh Circuit Court of Appeals decided King v. City of Madison, a case in which an employee sued her employer, claiming that the City failed to accommodate her disability in violation of the Americans with Disability Act (“ADA”) and the Rehabilitation Act. The Court of Appeals held that the City had accommodated King’s alleged disabilities, which included high-risk pregnancy, diabetes, and migraine headaches, because the collective bargaining agreement (“CBA”) only permitted an employee to bump the most junior employee in any job classification equal to or lower than her original position. The court found that...



  • Union Must be Permitted to Confer with Municipal Employees Prior to an Employer's Investigatory Meeting

    April 7, 2009

    Most school district employers are familiar with an employee’s right to union representation during an investigatory meeting that may result in disciplinary action. But is an employee also entitled to confer with a union representative prior to such a meeting? What if it is the union requesting the meeting with the employee, and not the employee himself? Is the denial of such a meeting a violation of the Municipal Employment Relations Act (MERA)? These issues were recently addressed in Columbia County (Highway Department), Dec. No. 32415-A (Jones, 9/24/08).Factual BackgroundColumbia County involved a verbal altercation between two employees working at the...



  • Federal Court Clarifies School Districts' Obligation to Pay for Early Childhood Education in Private Preschools

    April 7, 2009

    Under the Individuals with Disabilities Education Act (IDEA), school districts are required to provide free appropriate public education (FAPE) in the least restrictive environment (LRE) to students with eligible disabilities from ages 3 to 21. For preschool age students, LRE is also considered in the context of “natural environments” relative to the most appropriate environment for the delivery of services. The concept of natural environments has been incorporated into the IDEA for many years. However, the Federal District Court recently provided guidance to school districts relative to providing services in “natural environments” and their obligation to fund private preschool or...



  • Supreme Court Rules on Eligibility for Retiree Health Insurance

    April 7, 2009

    A recent decision from the Wisconsin Supreme Court provides some welcome relief for public sector employers concerned about retiree claims for vested health benefits. In Loth v. City of Milwaukee, 2008 WI 129, the Wisconsin Supreme Court ruled against an employee who claimed he was entitled to no-cost retirement health benefits which he argued had allegedly vested under a policy no longer in effect. In doing so, the Supreme Court confirmed that public sector employers have some latitude to modify benefits for those employees who have not yet retired, in cases where retirement is a requirement to receive the benefit.Factual...



  • Labor Relations Records Retention Strategies and Systems

    April 7, 2009

    As a new round of teacher bargaining begins – and as school districts watch to see if the QEO is removed and interest arbitration returns to the bargaining process – school districts need to establish a systematic labor relations record retention system. Maintaining a well organized and comprehensive system for retaining your school district’s labor relations records can be an inexpensive but invaluable tool in contract negotiations and administration.What Labor Relations Records Should I Keep?Labor relations records can come in a many forms, but generally fall into three groups: Bargaining History Records; Contract Administration Records; and Employer/Employee Policies and Procedures.Bargaining...



  • Are Your Public Deposits Insured?

    April 7, 2009

    How much money is in your district’s bank accounts? Is all of it covered by deposit insurance if the bank were to fail?These questions had less importance to school districts when the banking industry enjoyed greater stability, and school districts could give precedence to other financial and banking objectives. Indeed, focusing on interest rates, bond ratings, and other issues may have been right for the times. With the current state of the banking industry, however, school districts should review their public deposits to make certain that funds are secured properly. You can’t afford to discover the answers to these questions...



  • The Student-Teacher Relationship In A Texting World

    December 16, 2008

    The past few years have seen explosive growth in the use of new communication technologies including text messaging (texting), instant messages (IMs) and the use of social networking sites like Facebook and MySpace. It is estimated that 2 trillion instant messages were sent in 2007. These new means of communicating have become main stream. The November 2008 issue of American Bar Association Journal notes that texting and IM are becoming acceptable means of professional communication, especially among the younger generation of clients and attorneys.In the K12 educational environment, when teachers communicate with students through text-messaging, instant messaging or social networking...



  • Changes To The Federal Pupil Records Law

    December 16, 2008

    The Family Educational Rights and Privacy Act (FERPA), first enacted in 1974, is the federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education (DOE).On March 24, 2008, the Department of Education (DOE) published proposed changes to FERPA regulations. The proposed changes are largely in response to recent legislation such as the USA Patriot Act, several U.S. Supreme Court decisions; advances in technology and corresponding identify theft issues; and increasing violence on school campuses. A common theme in the school violence...



  • Amendment to ADA Opens Door To Increased Disability Claims and Damages

    December 16, 2008

    Congress recently voted to pass the ADA Amendment Act (“ADAAA”), which brings the ADA back to the standards originally intended by Congress, rather than the legal standards created by several U.S. Supreme Court cases. The President signed the ADAAA into law on September 25, 2008. The ADAAA will become effective on January 1, 2009.Wisconsin employers have always balanced two radically different disability laws: the Americans with Disabilities Act (“ADA”) and the disability provisions of the Wisconsin Fair Employment Act (“WFEA”). Employers have historically had to make the following distinctions: Is the employee disabled under the WFEA, under the ADA or...



  • Supreme Court Permits Access to Information Discussed in Closed Session

    July 15, 2008

    Recently the Wisconsin Supreme Court issued a decision that could have a far reaching impact on the discussions that elected officials have in closed session. In Sands v. Whitnall School District, 2008 WI 89 (July 11, 2008), the Supreme Court concluded that the discussions and action taken by elected officials in closed session are subject to disclosure in litigation. Although the Sands case involved an employment issue, this decision is much broader and could impact the discussion and decisions reached by a government body in closed session for any reason, if that action later leads to the filing of a...



  • Does the Public Records Law Apply to Private Contractors?

    July 8, 2008

    On June 25, 2008, the Wisconsin Supreme Court issued a decision further interpreting Wisconsin’s Public Records Law. The Court addressed several different issues, some of which may affect how school districts respond to open records requests, including the format in which they provide records and who will be considered an “authority” when dealing with an outside, independent contractor.WIREdata, a subsidiary of the Multiple Listing Service, made public records requests of the municipalities of Sussex, Thiensville, and Port Washington, in which it asked for comprehensive information regarding property assessments. The three municipalities had contracted with a private assessor who created databases...



  • Final 403(b) Regulations: Some Immediate Action Required

    September 4, 2007

    On July 26, 2007, the Internal Revenue Service (IRS) issued final regulations for 403(b) plans. These final regulations were expected for several years, and they are generally consistent with proposed regulations that were issued in November 2004. Most items under the final regulations can be addressed over the next two school years. This Legal Alert deals only with two minor items that school districts need to address immediately. One change will become effective September 24, 2007, and one will become effective September 25, 2007. Immediate Action NeededSchool districts need to address two 403(b) items immediately: How the district will handle...



  • Are Your IT Personnel Exempt From FLSA Overtime Requirement

    April 1, 2007

    Correctly classifying employees as exempt or non-exempt under the Fair Labor Standards Act (FLSA) can be a difficult task. Particularly difficult can be classifying employees who work in your information technology (IT) department. Employers commonly believe that, because IT personnel are often highly trained and skilled, well paid and work irregular hours with little or no supervision, they are likely exempt from overtime requirements under the FLSA. However, many IT personnel who merely maintain and troubleshoot company computer systems are not considered exempt employees under the Act. Therefore, in order to avoid costly violations of the FLSA, a careful analysis...



  • 403(b) Regulations Delayed Until At Least 2008

    September 5, 2006

    Many of you have contacted us to ask whether the IRS has made any further announcements about the new 403(b) regulations that were proposed in November 2004. While we finally do have something to report, it is only that the IRS made a formal announcement on Tuesday stating that, when issued, the regulations will not generally be effective before January 1, 2008. This is certainly good news for many school districts.The proposed regulations that the IRS published in 2004 would require that every school district make significant changes to their 403(b) programs. Rather than overreact, Davis & Kuelthau, s.c. has...



  • IDEA Final Regulations

    September 5, 2006

    After the enactment of the Individuals with Disabilities in Education Improvement Act (IDEA 2004), the Department of Education engaged in a comprehensive public comment process related to the proposed regulations implementing IDEA 2004. The new IDEA regulations released on August 3, 2006 represent the completion of that process, with the exception of the assessment related regulations which will be released at a future date. The new regulations will be effective on October 13, 2006. As the new school year begins, the following changes are presented for immediate consideration. Significant Highlights:Clarification of what constitutes a change in placement in disciplinary settings....



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