Walcheske & Luzi, LLC Employment Law Firm http://www.walcheskeluzi.com Wisconsin's Employment Lawyers Fighting Discrimination, Harassment, FMLA, Retaliation, Rights & Benefits Mon, 20 Oct 2014 14:45:33 +0000 en-US hourly 1 http://wordpress.org/?v=4.0 The Wolf of East Main Street: Same-Sex Marriage and Family and Medical Leave in Wisconsin http://www.walcheskeluzi.com/blog/wolf-east-main-street-sex-marriage-family-medical-leave-wisconsin/ http://www.walcheskeluzi.com/blog/wolf-east-main-street-sex-marriage-family-medical-leave-wisconsin/#comments Mon, 20 Oct 2014 14:45:33 +0000 http://www.walcheskeluzi.com/?p=3440 Last month, the Seventh Circuit upheld a district court decision in Wolf v. Walker that overturned Wisconsin’s 2006 state constitutional amendment banning same-sex marriages. Last week, the Supreme Court denied review of the case, which means the decision stands. As a result, Wisconsin now recognizes same-sex marriages.

The decision actually relates to employment law via the Family and Medical Leave Act and the Wisconsin Family and Medical Leave Act. Both laws provide unpaid leave entitlements to employees, including for an employee to care for the serious health condition of an employee’s spouse.

Prior to the Wolf v. Walker decision, there was confusion as to the leave rights of Wisconsin employees who obtained marriage licenses from states that recognized same-sex marriages. This was because the FMLA regulations defined spouse as “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides[.]” Thus, an employee with a same-sex spouse living in Minnesota, where same-sex marriage was previously recognized, but working in Wisconsin, where it was not recognized, would arguably not qualify for FMLA benefits. This could create a significant amount of confusion for Wisconsin employers near the state border who had employees residing across state lines and a part of same-sex marriages.

Moreover, Wisconsin had a quirk in its state law in this regard as well that was clarified a few months ago. Under a 2009 law, Wisconsin recognized domestic partnerships for same-sex couples. The Wisconsin Family and Medical Leave Act extended benefits to eligible employees for care of the serious health condition of a domestic partner. Proponents of the state constitutional amendment banning same-sex marriages argued this law conflicted with the state constitution and, thus, same-sex domestic partnerships were not eligible for benefits under the WFMLA. The domestic partnership law was challenged as unconstitutional, and later upheld, in a Wisconsin Supreme Court case from earlier this year. This had meant that an employee who was in a same-sex relationship could qualify for state leave entitlements as a domestic partner but not as a spouse. Whew.

The procedural end to Wolf v. Walker clarifies that all married individuals in Wisconsin are also eligible to qualify for FMLA benefits. There are, of course, other conditions that must be met, including the number of employees employed by the employer and the duration of time the employee has worked for the employer. But this decision adds a measure of clarity for employers trying to navigate the ins and outs of family and medical leave.

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Viking Quest II: Ray Rice and Wisconsin Employment Law http://www.walcheskeluzi.com/blog/viking-quest-ii-ray-rice-wisconsin-employment-law/ http://www.walcheskeluzi.com/blog/viking-quest-ii-ray-rice-wisconsin-employment-law/#comments Fri, 26 Sep 2014 14:56:26 +0000 http://www.walcheskeluzi.com/?p=3358 This is the second in a  two-part blog post series regarding Wisconsin employment law and the recent scandals with the National Football League and players in the justice system.

Last week I wrote about employer responses to employee misconduct that involve an arrest and the Onalaska defense under the Wisconsin Fair Employment Act. This week my post will explain the statutory “substantially related” defense in the WFEA when an employee is arrested or convicted of a crime.

Recall that under the WFEA, it is unlawful for an employer to discriminate against an employee on the basis of the individual’s arrest or conviction record. However, employers can take adverse action where the arrest or conviction is substantially related to the charge or conviction. That is, if the circumstances of the job are substantially related to the circumstances of the crime, the employer will be able to take adverse action.

In some circumstances, the comparison is easy for the employer to make. For example, a conviction for child abuse will preclude the individual from working with children. Additionally, the WFEA has been repeatedly interpreted so that the crime of theft demonstrates untrustworthiness in many other settings and allows an employer to prevent employment in a wide variety of positions.

This leaves us with the circumstances suggested by the Ray Rice situation. Many are familiar with the set of elevator videos showing Rice punching his fiancée. These circumstances raise a good question: In Wisconsin, is an employee convicted of domestic abuse protected by the WFEA?

The answer, of course, is “it depends.” The law has been interpreted to find that misdemeanor disorderly conduct/domestic abuse is not substantially related to the duties and responsibilities of a driver hired to deliver food products to fast food restaurants. In another case, a conviction for third-degree sexual assault, use of a dangerous weapon, first-degree recklessly endangering safety, and false imprisonment involving an incident with another individual with whom the offender had a personal relationship was deemed not substantially related to the job of a lift driver in a warehouse. In these types of cases, the substantially related defense has been interpreted to look at not only the elements of the crime but also the factual circumstances as well. Facts such as where the crime was committed and the relationship with the victim may be relevant to the analysis.

Thus, employers who intend to rely on this defense should take a close look at the position at issue, the elements of the crime, and even the factual circumstances of the crime to make a determination of whether the substantially related defense applies.

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Viking Quest: Adrian Peterson and Wisconsin Employment Law http://www.walcheskeluzi.com/blog/viking-quest-adrian-peterson-wisconsin-employment-law/ http://www.walcheskeluzi.com/blog/viking-quest-adrian-peterson-wisconsin-employment-law/#comments Thu, 18 Sep 2014 20:57:10 +0000 http://www.walcheskeluzi.com/?p=3352 This is the first in a two-part blog post series regarding Wisconsin employment law and the recent scandals with the National Football League and players in the justice system.

I think it is safe to say that everyone is now familiar with the Adrian Peterson scandal currently rocking the National Football League. Peterson was recently deactivated by the Minnesota Vikings (and then reactivated) following news that a warrant was issued for his arrest by a Texas court on charges of child abuse. Based on my personal observations, sports and news talk outlets seem to be divided on the role of Peterson’s employer, the Minnesota Vikings, in responding to these charges. Some have argued for Peterson to receive “due process” and let the legal system run its course before passing judgment on what the Minnesota Vikings should do about Peterson. Others have said that the Vikings should not let Peterson play because of the information already available to his employer.

Wisconsin presents some unique discussion on private sector, at will employment relationships under similar circumstances because the Wisconsin Fair Employment Act protects individuals from discrimination on the basis of the individual’s arrest record. That is, an employer cannot take an adverse action against an employee based on information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

However, there is an important caveat to arrest record discrimination cases in Wisconsin known as the “Onalaska defense.” This defense developed out of the 1984 Wisconsin Court of Appeals case of City of Onalaska v. LIRC. The Onalaska court held that it is not arrest record discrimination for an employer to take an adverse action because it concludes from its own investigation and questioning that the individual committed an offense. That is, an employer does not have to wait for the justice system to run its course before determining how misconduct that occurs away from work may affect the employment relationship. Doing so may actually open the employer up to liability for the related protected class of conviction record discrimination. Rather, an employer can rely on its own investigation and conclusions to determine whether adverse action is appropriate under the Onalaska defense.

In the next post, we’ll focus on conviction record discrimination and the substantial relationship defense.

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Now Trending: Boomerang Employees http://www.walcheskeluzi.com/blog/now-trending-boomerang-employees/ http://www.walcheskeluzi.com/blog/now-trending-boomerang-employees/#comments Wed, 30 Jul 2014 14:40:38 +0000 http://www.walcheskeluzi.com/?p=3338 Historically, employees who quit a job to work for a competitor company were no longer welcome to return to the original employer. A simple Google search of the term “boomerang employee” will quickly reveal that forward thinking companies, adapting to a still slowly recovering economy, are bucking traditional ideas of employer loyalty by re-hiring former employees.

The definition of a boomerang employee is simple: it is when an employee quits a job (for better pay, to go back to school, to have a family) and then is re-hired by that employer at a later date.

Boomerang employees can provide excellent benefits to employers. These are people who already know the culture of the employer and probably the basic operating structure of the business.  Early research shows boomerang employees are often happier than non-boomerang employees because they learned the “grass isn’t greener” at a different employer.

Employees should take care not to burn any bridges when leaving a job in the event they may want to return someday. On the flip side, employers should “leave the door open” to possible boomerang employees by conducting exit interviews to provide information about future accommodations such as telecommuting. Employers are assisted by technology in re-hiring employees because programs like LinkdedIn allow for easy communication after an employee has left.

However, there can be risks in hiring boomerang employees. For example, an employee who did not leave on good terms may create resentment among other employees when returning.

High profile boomerang employees like LeBron James have highlighted what is likely to be an important employment trend in the future. Stay tuned as we follow this issue.

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Walcheske & Luzi, LLC featured in BizTimes Milwaukee on the EEOC and Social Media http://www.walcheskeluzi.com/blog/walcheske-luzi-llc-featured-biztimes-milwaukee-eeoc-social-media/ http://www.walcheskeluzi.com/blog/walcheske-luzi-llc-featured-biztimes-milwaukee-eeoc-social-media/#comments Fri, 11 Jul 2014 14:33:10 +0000 http://www.walcheskeluzi.com/?p=3333 Our blog took a brief pause as the summer ramped up. But fear not, loyal readers! This week, you can learn some great information on the Equal Employment Opportunity Commission and social media courtesy of yours truly in the latest issue of BizTimes Milwaukee.

Those who follow legal developments with social media are likely already aware of the National Labor Relations Board’s efforts to apply the National Labor Relations Act to issues addressing social media in the workplace. Those efforts were a success in drawing attention to both the NLRB and the Act.

At a public meeting earlier this year, the EEOC indicated it has noticed the attention the NLRB received when focusing on social media and it is prepared to follow in its footsteps. Although nothing is certain, it is inevitable that employers and individuals will see new publications and enforcement actions targeting this topic. For more details, be sure to read my article.

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The Future of Non-Compete Agreements in Employment Contracts http://www.walcheskeluzi.com/blog/future-non-compete-agreements-employment-contracts/ http://www.walcheskeluzi.com/blog/future-non-compete-agreements-employment-contracts/#comments Wed, 09 Jul 2014 15:50:23 +0000 http://www.walcheskeluzi.com/?p=3331 NPR recently aired a story highlighting a possible change to Massachusetts law that would ban Non-Compete Agreements in employment contracts. In California, a similar law is already in place. Non-Compete Agreements exist between an employee and employer, and are designed to prevent former employees from working for an employer’s competitor for a period of time after leaving their employer.

The article highlights the perspectives of both employees and employers, evaluating both sides of the issue. Employers argue that, in an age of information, they should be able to protect their valuable propriety interests. Employees, on the other hand, find that these Agreements ultimately stifle their creativity.

The Massachusetts legislature has yet to vote on the law, although some commentators speculate the law will only place additional limits on Non-Competes, rather than banning the Agreements altogether.

To learn more about Non-Compete law in Wisconsin, you can read Attorney Jesse Dill’s recent blog post about an interesting Non-Compete case currently pending with the Supreme Court of Wisconsin. While our state still enforces Non-Compete Agreements, the NPR article suggests that perhaps this once settled area of law could be changing across the country.

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When Does a Health Problem Become “Enough” for Social Security to Consider it a Disability? http://www.walcheskeluzi.com/blog/health-problem-become-enough-social-security-consider-disability/ http://www.walcheskeluzi.com/blog/health-problem-become-enough-social-security-consider-disability/#comments Wed, 04 Jun 2014 14:46:58 +0000 http://www.walcheskeluzi.com/?p=3319 Social Security Disability Evaluation

I often receive phone calls from prospective clients wondering if their condition(s) would qualify them for Social Security Disability. Unfortunately, disability is a “squishy” term and there is no straightforward answer to this question.

Social Security does use a Five Step Sequential Evaluation Process (listed below) to guide in the evaluation of Disability claims that can help shed some light on what is “enough” to consider someone disabled.

Step 1: Work Activity
Step 2: Medical Severity of Impairments – Duration of Disability
Step 3: Medical Severity of Impairments – Listings
Step 4: Ability to Perform Past Work
Step 5: Ability to Perform Any Other Work

The first step is to determine if the Claimant, or person who has filed for Disability, is working. If not, Social Security moves on to Step 2. If the Claimant is working, Social Security must decide if the work qualifies as Substantially Gainful Activity, or SGA. Social Security’s rules explain that in most situations if a person is working and his or her gross earnings (before taxes) are roughly $1,000 per month, it is SGA and that person will be denied almost immediately. In this instance, Social Security will not evaluate if the Claimant meets the medical requirements for Disability.

At the second step, Social Security will determine if the impairment has lasted at least one year or could be expected to last at least one year. If the condition(s) do not meet this requirement, the claim will be denied. If the condition(s) do meet the duration requirement, Social Security moves on to Step 3.

Step 3 is where the medical records and doctor opinions are thoroughly evaluated.  The Disability Determine Service or Bureau (DDS or DDB) will collect the medical records from all of the treating doctors to see if the condition meets the requirements of the Listings. Listings outline conditions or symptoms that automatically qualify someone for Disability. It is quite difficult to meet the Listing requirements, so I generally argue that a combination of a Claimant’s symptoms and impairments meet the disability threshold set forth by the Listings. If a Claimant meets the Listing criteria, it will result in an award for benefits. If not, Social Security will look at all of the medical evidence and move on to Step 4.

Once moving to Step 4, Social Security considers whether or not the condition(s) prevent the Claimant from doing any job he or she may have performed in the past 15 years.

Finally, Step 5 is when Social Security considers if there is any other work in the national economy that the Claimant could perform. This step often proves to be the most difficult in Disability cases.

The Five Step Sequential Evaluation is a good place to start when thinking about Disability but Social Security also looks at a Claimant’s age and education level, making the determination even more complicated. Because each person’s situation is so unique, and the high odds that a Claimant will be denied by Social Security, it is best to consult a lawyer to work through the intricacies of the law.

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What is Wrongful Termination? http://www.walcheskeluzi.com/blog/wrongful-termination/ http://www.walcheskeluzi.com/blog/wrongful-termination/#comments Tue, 27 May 2014 14:07:01 +0000 http://www.walcheskeluzi.com/?p=3314 When a termination is handled poorly or when an individual feels that a termination was unfair, unjustified, etc. (but not necessarily unlawful), four words often follow: “I was wrongfully terminated.”  Beyond being a general descriptor for a termination, “wrongful termination” is actually a distinct legal claim in Wisconsin.  So what is wrongful termination?  Glad you asked.

Wisconsin is an “at-will” state, meaning that an employer can terminate an employee for good cause, no cause, or even for reasons that are subjectively unfair or “wrong,” so long as the termination is not unlawful.  Importantly, employers do not have to provide employees with the reason(s) for their terminations.  On the flipside of the “at-will” doctrine, employees are free to quit whenever and for whatever reason (if any) they so choose.

Quickly looking beyond wrongful termination, a termination can be unlawful if the reason(s) underlying the termination decision violates existing laws, such as Title VII of the Civil Rights Act of 1964, the Wisconsin Fair Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act, just to name a few (we have more here, which still barely scratch the surface).

Unlike those laws, “wrongful termination” lacks a statutory definition, but rather is a construct of Wisconsin courts, having been specifically recognized as a cause of action by the Wisconsin Supreme Court in 1983.  Because it does not have a written definition, the boundaries of “wrongful termination” have expanded and contracted over the years.  However, what has remained true since 1983 is that “wrongful termination” occurs when an employee is terminated for refusing to violate a constitutional or statutory provision or for reporting unlawful conduct in the workplace.

Examples come from wrongful termination cases including a nurse who refused to work in an area of a hospital for which she was not qualified, a credit union clerk who refused to reimburse her employer for its losses resulting from a customer’s bad check, a truck driver who refused his employer’s command to operate his truck without a valid driver’s license, and a payroll clerk who refused to violate tax withholding regulations.

While not necessarily, wrongful termination claims can sometimes overlap with other exceptions to the at-will doctrine.  Looking at the above examples, other laws that could be implicated include, but would not be limited to, the Healthcare Worker Protection Law, the Fair Labor Standards Act, the Occupational Safety and Health Act of 1970, and the Sarbanes-Oxley Act of 2002.

The takeaway is that not every termination is “wrongful” or unlawful, though there are obvious exceptions.  Employers are wise to consult with an employment law attorney before making a termination decision to make sure the termination does not fall into an exception.  On the other hand, employees should consult with an employment law attorney if they think their termination was the exception.

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Potential Changes on the Horizon for Non-Compete Law in Wisconsin http://www.walcheskeluzi.com/blog/potential-changes-horizon-non-compete-law-wisconsin/ http://www.walcheskeluzi.com/blog/potential-changes-horizon-non-compete-law-wisconsin/#comments Fri, 23 May 2014 15:49:36 +0000 http://www.walcheskeluzi.com/?p=3311 Agreements not to compete with an employer after the employment relationship ends seem to be more common each year. At a recent presentation, when I asked the crowd who had a non-compete agreement or knew of other employees at their workplace who had one, almost every audience member’s hand was raised high. A recent legal development in Wisconsin may signal a significant change in non-compete agreement enforcement is in the works.

In Wisconsin, non-compete agreements are subject to a state statute, Wis. Stat. § 103.465. One additional requirement of a non-compete agreement is that it must be supported by consideration. In other words, each side has to “get” something for its promise. In the world of non-compete litigation, experienced attorneys will usually be quick to examine whether an employee received appropriate consideration when he or she agreed to the non-compete terms. As the law stands, Wisconsin courts will accept the offer of employment as sufficient consideration but continued employment alone is not enough. That is, an employer presenting a non-compete agreement for signature to an employee after the employment relationship begins will have to offer something more. Usually, the approach offering the most legal certainty will involve a financial incentive.

Last month, the Wisconsin Court of Appeals asked the Wisconsin Supreme Court to address this issue in Runzheimer International, Ltd. v. Friedlen, et al. Specifically, the court of appeals certified the following question: “Is consideration in addition to continued employment required to support a covenant not to compete entered into by an existing at-will employee?” The former employee at issue signed a non-compete agreement after twenty years of employment. Around two years later, the employer terminated his employment and he went to work for a competitor. Coincidentally, a state appellate court for our neighbors to the south in Illinois recently decided that continued employment must last for two years before it is sufficient consideration to support a non-compete agreement.

Non-compete agreements need to be updated as changes in the law occur to serve any use. What may seem to be a slight change in the law may render what was a solid agreement, completely unenforceable. Wisconsin also has a solid history of significant changes occurring in this area of the law every few years. The small price to evaluate a non-compete agreement to determine whether it is valid under current law can save a mountain in litigation costs down the road.

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Fast Food Worker Pay http://www.walcheskeluzi.com/blog/fast-food-worker-pay/ http://www.walcheskeluzi.com/blog/fast-food-worker-pay/#comments Tue, 06 May 2014 15:19:34 +0000 http://www.walcheskeluzi.com/?p=3304 In another twist in the ongoing battle between fast food workers and their employers, CNN Money reported late last week that employees are now suing both their employers and the owner of the franchise where they work, in an effort to curb Wage and Hour violations under the Fair Labor Standards Act (FLSA).  Common Wage and Hour violations occur when an employee is required to clock out at closing time, but then must continue to work off the clock to clean the restaurant. The author of the article reports parent corporations, including McDonald’s and Dunkin’ Donuts, have distanced themselves from liability under the FLSA by explaining that it is the responsibility of each franchise owner to comply with all state and federal laws.

While the Department of Labor has been investigating Wage and Hour violations by franchise owners for many years, the 2013 protests by fast food workers, who walked off the job in an effort to raise the minimum wage to $15, have generated debate about larger issues of income inequality that likely led to this litigation surrounding liability for Wage and Hour claims.

With the onslaught of these lawsuits, parent corporations may need to change their policies with regard to franchisees. The CNN article suggests that providing education to fast food franchise owners may help to avoid costly complaints down the road.  But any employer with franchises, whether in the fast food industry or not, should continue to monitor this issue and consult counsel to avoid any violations of the FLSA.

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