Walcheske & Luzi, LLC Employment Law Firm http://www.walcheskeluzi.com Wisconsin's Employment Lawyers Fighting Discrimination, Harassment, FMLA, Retaliation, Rights & Benefits Tue, 17 Nov 2015 23:07:29 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.1 FAQ: Are Non-Compete Agreements Enforceable in Wisconsin? http://www.walcheskeluzi.com/blog/faq-are-non-compete-agreements-enforceable-in-wisconsin/ http://www.walcheskeluzi.com/blog/faq-are-non-compete-agreements-enforceable-in-wisconsin/#comments Tue, 17 Nov 2015 23:01:15 +0000 http://www.walcheskeluzi.com/?p=3770 For some reason or another, we’ve experienced a significant up-tick in the number of times this question is coming up, so we wanted to take a moment to answer it with a stereotypical attorney response: “Yes, but not always.”

Currently (more on this in a bit), in order for a non-compete agreement to be enforceable in Wisconsin, it must:

  1. Be necessary for the protection of the employer;
  2. Have a reasonable time restriction;
  3. Have a reasonable territorial limit (distance from the employer or geographical area);
  4. Not be harsh or oppressive to the employee (i.e., be too overbroad); and
  5. Not contradict public policy (e.g., eliminating the only certified cat surgeon in a 50-mile radius from being a cat surgeon within a 50-mile radius)

Further, “consideration” (some sort of benefit) must be provided to the employee in exchange for signing the agreement. Notably, the Wisconsin Supreme Court held this year that continued employment can be sufficient consideration for a non-compete agreement. This of course means that in order for an employer to make continued employment the consideration for signing such an agreement, it must be prepared to terminate the individual in the event s/he does not sign it, but I digress.

So, assuming that the non-compete agreement is necessary to protect the employer, contains reasonable time and geographic restrictions, is not overly oppressive to the employee, and does not contradict public policy, the agreement will be enforceable in Wisconsin. If not, then it will not be enforceable.

However, to circle back on the “Currently” while also reinforcing the importance of keeping up to date with the constant changes in employment law, this all may soon be changing. This year legislation was introduced that would significantly alter the non-compete landscape and make them significantly easier to enforce. For more information on this potential change, click here and scroll to the section of the blog titled “2015 Senate Bill 69 – Restrictive Covenant Reform.” If these changes do go through, be sure that we will cover them here.

Of course, for further guidance on properly drafting a non-compete agreement for your workplace of having your current agreement reviewed for enforceability, please contact any of the fine attorneys at Walcheske & Luzi.

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So a Wisconsin Employee Shows Up on the Ashley Madison Hack Information… http://www.walcheskeluzi.com/blog/so-a-wisconsin-employee-shows-up-on-the-ashley-madison-hack-information/ http://www.walcheskeluzi.com/blog/so-a-wisconsin-employee-shows-up-on-the-ashley-madison-hack-information/#comments Thu, 27 Aug 2015 17:57:16 +0000 http://www.walcheskeluzi.com/?p=3734 Last week, hackers dumped 9.7 gigabytes of account information from the Ashley Madison website. For those of you who don’t know what Ashley Madison is – bless you – it is a dating website that serves would-be adulterers. Perhaps the most highly publicized account holder from the scandal was reality TV star Josh Duggar of TLC’s show “19 Kids and Counting.”

Of course, we’re interested in the employment law link on this blog. This leads to the important question of this post – what are the implications if an employee is terminated because the employer finds his or her name among the gigabytes of account information from Ashley Madison?

The Wisconsin Fair Employment Act creates two protected classes not found in federal law relevant to this discussion: (1) arrest or conviction record; and (2) use or nonuse of lawful products off the employer’s premises during nonworking hours.

The protected class of arrest or conviction record is raised here because adultery is a crime in Wisconsin. Wisconsin Statutes Chapter 944 addresses Crimes Against Sexual Morality, and Wisconsin Statute § 944.16 prohibits adultery. Specifically,

Whoever does either of the following is guilty of a Class I felony:

  • A married person who has sexual intercourse with a person not the married person’s spouse; or
  • A person who has sexual intercourse with a person who is married to another.

So an employer who makes an adverse employment decision based on an individual’s arrest or conviction for adultery may face liability under the Wisconsin Fair Employment Act. However, this would really only be relevant if a person was actually arrested or convicted for adultery. Moreover, under the Onalaska defense of Wisconsin law, an employer can take an adverse action when it is not based on an arrest or conviction but rather based on the employer’s own investigation and questioning that the individual committed an offense. Thus, if an employee is not arrested or convicted or if the employer is strictly relying on its own investigation, the employer probably is not facing liability under this protected class.

Perhaps the more interesting protected class to this discussion is the protection for use or nonuse of lawful products off the employer’s premises during nonworking hours. Most of the decisions dealing with this protected class address use of alcohol or drugs, so there is not clear precedent to go by. However, Ashley Madison seems to fit the bill of a lawful product, as morally offensive as it may be. If the employee’s use of the Ashley Madison website is strictly during nonworking hours, then the employee is likely protected from an adverse decision based on that conduct. But if the employee is using the site during working hours, then an adverse decision based on that use is not protected. The best policy for employers in these circumstances is to have a clear, well-articulated policy that prohibits the use of company devices for purposes not related to work.

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2015-2016 Wisconsin Legislature Update Part 2  http://www.walcheskeluzi.com/blog/2015-2016-wisconsin-legislature-update-part-2/ http://www.walcheskeluzi.com/blog/2015-2016-wisconsin-legislature-update-part-2/#comments Wed, 20 May 2015 19:22:21 +0000 http://www.walcheskeluzi.com/?p=3641 This week, our legislative update continues with three more additions to the list of new proposals. In this post, we’ll also tackle two of the most controversial topics taken up by the Wisconsin legislature. One of these, popularly titled “right to work” legislation, passed earlier this year. The other, requiring unemployment benefit recipients to undergo drug testing, appears well on its way to become the latest workplace law.

Assembly Bill 192 – Unemployment Insurance Drug Testing

Perhaps one of the most controversial proposals, AB192 would require certain applicants for unemployment insurance benefits to submit to drug testing to receive payments. In its current form, AB192 would require testing from those who were terminated for unlawful use of controlled substances or those individuals looking for suitable work in an occupation that regularly conducts drug testing. However, those occupations would be determined by the federal Department of Labor, which has yet to finalize the list of jobs to which this requirement may apply.

Even if passed, AB192 may face an additional hurdle of federal law. Late in 2013, a Florida federal district court found that a state law requiring recipients of Temporary Assistance to Needy Families benefits to submit to drug testing violated the Fourth Amendment restriction against unreasonable searches. Such an argument may significantly affect any Wisconsin law passed imposing similar requirements on unemployment benefit recipients. However, the Florida law broadly affected all recipients in contrast with the more-limited Wisconsin proposal.

The Department of Workforce Development’s Fiscal Estimate, received May 6, 2015, foresees $2.862 million in one-time costs to implement the proposal in its current form and $1.059 million in annual costs going forward. AB192 was read its third and final time in the Assembly and passed on May 13, 2015. Next, the Wisconsin Senate will take up the bill. With seemingly strong support of legislative Republicans, passage of AB192 is likely.

Assembly Bill 118 – Day of Rest Reform

Under Wisconsin’s current “one day of rest in seven” law, employees of factory or mercantile establishments, with some exceptions, must receive one day off every seven consecutive days. Employers who violate this law are subject to fines up to $100 for each offense. AB 118 would add an exception to this law so that an employee can voluntarily waive this legal requirement. Under the proposal, an employee must provide this waiver in writing by stating he or she voluntarily chooses to work without at least 24 consecutive hours of rest in 7 consecutive days.

AB 118 was introduced on March 27, 2015, and immediately referred to the Committee on Labor, where it currently remains.

2015 Wisconsin Act 1

Of course, most attention this legislative session has been dedicated to a bill that already passed into law. On March 10, 2015, Wisconsin became the latest “right to work” state with the publication of 2015 Wisconsin Act 1. This law prohibits employers from including as part of a collective bargaining agreement a term that requires all employees to become members of a union. Local publications have criticized the law for wanting evidence of any positive economic outcome, while at the same time one Milwaukee area CEO claimed the legislation was necessary to preserve area jobs. Regardless, this legislative session began with passage of a significant piece of workplace legislation.



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2015-2016 Wisconsin Legislature Update Part 1 http://www.walcheskeluzi.com/blog/2015-2016-wisconsin-legislature-update-part-1/ http://www.walcheskeluzi.com/blog/2015-2016-wisconsin-legislature-update-part-1/#comments Fri, 08 May 2015 14:45:26 +0000 http://www.walcheskeluzi.com/?p=3638 With the current Wisconsin legislature well under way, it is a good time to take a look at proposed and passed bills affecting labor and employment laws. Some of these are very likely to pass, while others stand little chance of becoming law given the political makeup of the 2015-2016 session. We’ll break the legislative activity up into two parts and provide detailed analysis in the future for any one of them that passes.

2015 Senate Bill 2 – Minimum Wage Reform

In a nutshell, SB2 seeks to raise the state minimum wage over the next few years and thereafter provide for regular increases. Currently, the minimum wage rate for employees generally in Wisconsin is $7.25 per hour, and for tipped employees $2.33 per hour. If passed, SB2 would provide for an immediate increase to $8.20 per hour for employees generally and to $3.00 per hour for tipped employees. Employees generally would then have a minimum wage of $10.10 per hour two years after SB2 passes. SB2 also provides for future regular increases of the state minimum wage for both employees generally and tipped employees that is tied to a formula based on the consumer price index. Tipped employees would also receive an annual increase in the minimum wage of 95 cents until the rate is 70% of the minimum wage for employees generally.

SB 2 was referred to the Committee on Labor and Government Reform on January 6, 2015. It remains in committee though a fiscal estimate on its effects for the Department of Workforce Development was received on April 28, 2015.

2015 Senate Bill 5 – Wage and Hour Claim Reform and New Disclosure Requirement

SB5 seeks to make several changes to the rules on filing a wage claim in Wisconsin. The bill would bring the Fair Labor Standards Act collective action concept to state law and allow an individual to file a claim on behalf of oneself and other employees who consent in writing. SB5 also increases the statute of limitations, or the time in which an employee can file a claim, from two to four years. The bill would also increase the liquidated damages an employer may be ordered to pay if found liable under Wisconsin wage and hour law. Currently, if an employee files a circuit court claim after an investigation by the Department of Workforce Development, he or she can collect an additional 100% of the unpaid wages as damages or 50% if he or she foregoes such an investigation. Those additional damages would increase to 200% and 100% respectively. With respect to wage claims, SB5 would also create penalties in the form of interests and surcharges for noncompliant defendants.

SB5 also creates a new disclosure statement requirement for all employers. The statement outlined by SB5 requires an employer to affirm the terms of employment to the employee. Such statement would need to be distributed to an employee at the time of hiring, on January 1 of each year, and no later than seven days prior to any change in the terms of employment. The “terms of employment” required by the disclosure statement include the employer’s contact information, wage and payment frequency information; when an employee may be paid at a higher rate; and other benefits the employer provides the employee. An employer failing to comply with this requirement may be forced to pay $50 per day that the statement is not provided and reasonable costs and attorney fees.

SB5 was referred to the Committee on Labor and Government Reform on January 16, 2015, where it remains. It has since received fiscal estimates from three government agencies, the most recent of which was from the Department of Workforce Development and is dated April 22, 2015.

2015 Senate Bill 69 – Restrictive Covenant Reform

SB69 would make significant changes to the law controlling enforcement of restrictive covenant agreements in Wisconsin. Restrictive covenant agreements include such contracts as non-compete agreements and non-solicitation agreements. These agreements are currently regulated by a Wisconsin statute, Wis. Stat. § 103.465, and a long line of court decisions.

If passed, SB69 will affect nearly everything lawyers know about enforcement of restrictive covenant agreements. For example, continued employment would constitute valuable consideration to support a restrictive covenant following passage of SB69 whereas current law does not recognize continued employment as sufficient consideration.

Perhaps most significantly, SB69 would make Wisconsin a “blue pencil” state with respect to restrictive covenants. That is, SB69 gives a court the power to rewrite an unenforceable agreement to make it enforceable. This is a major change as Wisconsin courts are not able to rewrite such agreements under current law.

SB69 was introduced on March 5, 2015. A similar bill, 2015 Assembly Bill 91, was also introduced in the Assembly on March 12, 2015. The senate version was immediately referred to the Senate Committee on Judiciary and Public Safety, where it remains as of this writing. As SB69 was introduced and co-sponsored by Republican legislators, in a Republican majority legislature, and enjoys the backing of the Wisconsin Manufacturers and Commerce lobbying group, SB69 stands a strong chance of becoming law. Check back with the Walcheske & Luzi blog for a detailed analysis if SB69 passes.

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Wisconsin Supreme Court Adds New Twist to Restrictive Covenant Law http://www.walcheskeluzi.com/blog/wisconsin-supreme-court-adds-new-twist-to-restrictive-covenant-law/ http://www.walcheskeluzi.com/blog/wisconsin-supreme-court-adds-new-twist-to-restrictive-covenant-law/#comments Wed, 06 May 2015 14:00:22 +0000 http://www.walcheskeluzi.com/?p=3636 Every few years the Wisconsin Supreme Court gives us a significant change or new addition to the law on restrictive covenants in our great state. True to form, the Court published Runzheimer International, Ltd. v. David Friedlen, et al., which should give employers good cause to reexamine their restrictive covenants with employees.

Let’s start with the basics. A restrictive covenant, for purposes of this discussion, is an agreement between an employer and an employee for the individual to not do something after the employment relationship ends. In Wisconsin, they are governed by statute, Wis. Stat. § 103.465. Typically, these agreements come in the form of noncompetition or nonsolicitation terms. With a noncompetition agreement, the employee agrees not to work for certain competitive businesses within a certain area and for a certain amount of time after the employment relationship ends. A nonsolicitation agreement usually requires that the employee agree not to try to convince other employees to leave employment for a competitor for a certain amount of time after the employment relationship ends.

Restrictive covenants are contracts and subject to the legal requirements of contracts. One of those requirements is that a contract must be supported by consideration to be enforceable. Very basically summarized, this means that the employee has to receive something or the employer has to experience something to its detriment for the promise of the employee. Prior to Runzheimer, consideration could take the form of things like money, such as a bonus, or the promise of new employment. However, the prevailing understanding in Wisconsin was that continued employment, where an employee was asked to sign a restrictive covenant agreement after commencing employment, could not suffice as consideration to make those terms enforceable.

Runzheimer changes this principle and holds that the condition of continued employment can serve as adequate consideration. In this case, David Friedlen worked for Runzheimer International, Ltd. for fifteen years when the company asked all employees to sign a restrictive covenant agreement. Friedlen was given a choice to either sign the agreement or be fired. Friedlen did not receive anything else. Friedlen signed the covenant and worked for two more years before he was fired. After that employment relationship ended, Friedlen tried to work at a competitor of Runzheimer’s, Corporate Reimbursement Services. Runzheimer then brought suit against Friedlen and CRS to enforce the agreement.

The Wisconsin Supreme Court found that Runzheimer’s restrictive covenants with Friedlen were enforceable. On the specific issue before the Court, it found that Runzheimer’s promise not to terminate Friedlen if he signed the agreement was the necessary legal consideration to make it an enforceable restrictive covenant. The Court did not take the path of requiring a certain period of continued employment to follow to make the agreement enforceable. Rather, the Court’s analysis focused on Runzheimer’s promise not to terminate Friedlen at the time if he signed the agreement. This promise to forebear its right to terminate an at-will employee was the necessary consideration to support the restrictive covenants.

Four takeaways from Runzheimer:

  • The promise not to fire an employee should be clear. The Court distinguished Runzheimer from NBZ Inc. v. Pilarski, where there was no evidence that the employer explicitly conditioned continued employment on agreeing to the restrictive covenant. Therefore, an agreement is more likely to be enforceable where continued employment is made explicitly conditional on assent to the restrictive covenant terms.
  • How long of a period of continued employment must follow assent to a restrictive covenant? Other states, such as Illinois, hold that two years of continued employment is required for there to be sufficient consideration. Essentially, the concurring opinion of Chief Justice Abrahamson seems to suggest that the appropriate analysis would look at the period of employment following assent to the restrictive covenant agreement. But the majority opinion takes a narrower view where a short period of continued employment can negate the agreement because it does not rely on continued employment as consideration – rather, it is the promise to forebear on its right to terminate. This issue will likely be an argument for future courts to clarify.
  • Speaking of length of continued employment . . . employees still have an out. The Court specifically cited legal claims such as “fraudulent inducement or good faith and fair dealing” that might make a restrictive covenant unenforceable where it relies on the condition of continued employment as consideration. This is seemingly a more complicated means of addressing adequacy of consideration than other courts follow to set out how long the employment relationship must continue to be considered lawful consideration. Employees who are employed for a short period of time after agreeing to the terms of a restrictive covenant are likely to channel those facts through these claims identified by the Court.
  • Whether an employee quits or is terminated may be significant to the issue of consideration. Throughout the opinion, the Court’s analysis focused on employer conduct in examining consideration. Whether an employee quits after a short period of continued employment may be significant to whether a restrictive covenant agreement is enforceable.
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Is Your Wellness Program “Well” According to the EEOC? http://www.walcheskeluzi.com/blog/wellness-program-well-according-eeoc/ http://www.walcheskeluzi.com/blog/wellness-program-well-according-eeoc/#comments Tue, 21 Apr 2015 15:53:34 +0000 http://www.walcheskeluzi.com/?p=3532 On Monday, April 20, 2015, the EEOC took a big step towards clarifying some hot button questions concerning the Americans with Disabilities Act and employer wellness programs by issuing a notice of proposed rulemaking. Much confusion has been generated in recent years over how wellness programs interact with the ADA. By providing notice of proposed rules, the public now may provide comment before these rules go into effect.

A wellness program is offered as part of an employer’s health insurance benefits. It is intended to provide an incentive to improve any participant’s health. Wellness programs are divided into two categories: (1) participatory or (2) health contingent. A participatory wellness program provides a reward for showing up. That is, an employee might receive reimbursement for maintaining a gym membership. A health contingent wellness program requires an individual to perform. For example, an employee might receive a reward under the wellness program if he or she quits smoking.

Wellness programs received a stamp of approval of sorts from the Obama Administration when in 2013 the Departments of Health and Human Services, Labor, and Treasury issued final rules on wellness programs following implementation of the Affordable Care Act. Generally, these final rules set limits on the effects and standards of wellness programs out of concern for the safety of some participants.

However, in recent years, the EEOC has raised some eyebrows over litigation that addresses employers’ attempts to implement certain wellness programs. Some of these lawsuits are occurring right here in our backyard of Wisconsin. For example, in October 2014, the EEOC announced a lawsuit against an employer that alleged, in part, the employer’s wellness program required medical examinations and made disability-related inquiries in violation of the ADA. In another suit announced by the EEOC, an employer was alleged to have also violated the ADA’s prohibition against disability-related inquiries through the employer’s requirement that employees complete biometric testing as part of its wellness program.

Since the EEOC filed these lawsuits, many employers and practitioners have begged for clarification on when a wellness program conflicts with the ADA. Much of the confusion comes from the ADA allowing health-related inquiries or medical examinations when they are voluntary. Determining what exactly is permissibly voluntary or impermissibly required by an employer is perhaps the most significant issue the proposed rules, available here, seek to clarify. On this issue, the proposed rules explain:

“[T]he maximum allowable incentive for a participatory program that involves asking disability-related questions or conducting medical examinations (such as having employees complete a [Health Risk Assessment]) or for a health contingent program that requires participants to satisfy a standard related to a health factor may not exceed 30 percent of the total cost of employee-only coverage.”

Thus, the EEOC’s proposed rule does “well” to add some certainty to this area. It provides a hard number to refer to in examining a wellness program. Employers can now look at the value of the incentive they wish to provide and compare it to the cost of health benefits to the individual employee and determine whether their wellness program complies with the ADA.

Other useful materials provided by the EEOC related to the new proposed rules include a Fact Sheet for Small Businesses and a Q&A document.

The public has 60 days or until June 19, 2015 to provide comment on the proposed rules. Stay tuned to the Walcheske & Luzi blog for an update when the final rules go into place.

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Walcheske & Luzi, LLC Presents Donation Check to End Domestic Abuse Wisconsin http://www.walcheskeluzi.com/blog/walcheske-luzi-llc-presents-donation-check-end-domestic-abuse-wisconsin/ http://www.walcheskeluzi.com/blog/walcheske-luzi-llc-presents-donation-check-end-domestic-abuse-wisconsin/#comments Mon, 23 Mar 2015 14:52:34 +0000 http://www.walcheskeluzi.com/?p=3501 Walcheske & Luzi ENDA Check 3.17.15

Madison, WI – March 17, 2015 – On March 17, 2015, Attorneys James Walcheske and Jesse Dill of the Brookfield, Wisconsin employment law firm Walcheske & Luzi, LLC presented a donation of $500 to End Domestic Abuse Wisconsin. The firm’s donation was the result of Attorneys Walcheske’s and Dill’s December 16, 2015 webinar presentation before the Wisconsin State Bar titled “Nevermore: Employment Law and the Ray Rice Case.”

Following a series of website blog posts addressing developments in the National Football League, domestic violence, and employment law, Walcheske & Luzi, LLC’s attorneys presented on legal issues affecting the workplace and involving domestic violence. The presentation was conducted as a webinar through the State Bar of Wisconsin. The State Bar of Wisconsin agreed to donate a portion of the proceeds from the presentation to End Domestic Abuse Wisconsin.

“We are very happy that we were able to direct the interest in the topic of domestic violence in the workplace to a very worthwhile cause,” said James Walcheske, a founding partner of Walcheske & Luzi, LLC.

Walcheske & Luzi, LLC represents employers and employees in all aspects of the employment relationship. Attorney Dill has a long history working with End Domestic Abuse Wisconsin, dating back to his days as a legal intern for the non-profit and while he attended Marquette University Law School. Attorneys Walcheske and Dill are residents of Wauwatosa, Wisconsin.

(Picture caption: left to right Tess Meuer, ENDA Director of Justice Systems; Jesse Dill, Walcheske & Luzi, LLC; Patti Seger, ENDA Executive Director, and James Walcheske, Walcheske & Luzi, LLC)

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Homelessness and Atheism May be the Next Protected Classes for Madison Employers to Consider http://www.walcheskeluzi.com/blog/homelessness-atheism-may-next-protected-classes-madison-employers-consider/ http://www.walcheskeluzi.com/blog/homelessness-atheism-may-next-protected-classes-madison-employers-consider/#comments Thu, 05 Feb 2015 15:45:24 +0000 http://www.walcheskeluzi.com/?p=3484 Most employers know about the federal Equal Employment Opportunity Commission and the state Department of Workforce Development, Equal Rights Division. These are the federal and state agencies that process complaints of unlawful employment discrimination under federal and state laws. But did you know that a municipality may have an established entity to address complaints of discrimination in violation of a local code?

Such is the case with Madison’s Equal Opportunity Commission. Madison is in the unique position of offering employees discrimination protections through its municipal code, Section 39.03 of the Madison General Ordinances. The Madison EOC works in much the same way as the ERD with a complaint, investigation, determination, and hearing. However, Section 39.03 offers some unique protections not found in Wisconsin or Federal law. For example, state and federal law protect individuals from discrimination in employment on the basis of sex, age, race, color, religion, national origin, and disability. Of course, state law offers unique protections in arrest and conviction record and marital status. The Madison EOC covers all of these as well. But the Madison EOC takes it a step further and also protects individuals on the basis of familial status, student status, physical appearance, political beliefs, and less than honorable discharge.

Recently, Madison Ald. Anita Weier announced a proposal to expand the protections of Madison’s EOC to include the homeless and atheists. This would prohibit discrimination in employment decisions on the basis of one’s status as a homeless individual or as an atheist. The homeless protections are new and unique to the Madison EOC. The atheist protections clarify at the municipal level what arguably already exists through state and federal law. If added and an employer is found to have violated Section 39.03, it may be ordered to pay lost wages, compensatory damages, and attorneys’ fees. All are good reasons to pay attention to your local municipal code if you are a Madison employer.


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Walcheske & Luzi, LLC Attorneys Honored by Super Lawyers http://www.walcheskeluzi.com/blog/walcheske-luzi-llc-attorneys-honored-super-lawyers/ http://www.walcheskeluzi.com/blog/walcheske-luzi-llc-attorneys-honored-super-lawyers/#comments Fri, 14 Nov 2014 00:39:27 +0000 http://www.walcheskeluzi.com/?p=3456 Walcheske & Luzi announced today that three of its attorneys were recently honored by Super Lawyers as Rising Stars in Employment Law. Attorney Jesse R. Dill joined Attorneys James A. Walcheske and Scott S. Luzi on the list this year. This is the third year in a row James Walcheske and Scott Luzi have been recognized by Super Lawyers.

Super Lawyers relies on peer recognition and third-party research to assess attorneys on a state-by-state basis. Candidates are evaluated on indicators that include verdicts and settlements, experience, and outstanding achievements. The final selections for Super Lawyers recognize no more than 2.5 percent of attorneys either 40 years old or younger or in practice for 10 years or less.

“We are honored to again have a number of our attorneys recognized by Super Lawyers,” said Managing Partner James Walcheske. “Accolades such as this are the result of a lot of hard work for our clients,” added Walcheske.

For more information, contact Walcheske & Luzi at (262) 780-1953.


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Supreme Highlight: EEOC v. Abercrombie & Fitch – When is Notice, Notice? http://www.walcheskeluzi.com/blog/supreme-highlight-eeoc-v-abercrombie-fitch-notice-notice/ http://www.walcheskeluzi.com/blog/supreme-highlight-eeoc-v-abercrombie-fitch-notice-notice/#comments Thu, 06 Nov 2014 15:18:08 +0000 http://www.walcheskeluzi.com/?p=3453 Two things that I can safely say Abercrombie will do this year: (1) violently assault my nostrils for daring to walk within a two-mile radius of an Abercrombie store (they seriously must use a cologne fogger); and (2) be involved in a Supreme Court case involving religious discrimination.

Continuing our employment law highlight of the current Supreme Court term that started here and kept rolling with our previous post about Young v. UPS, a second major case to keep an eye on is EEOC v. Abercrombie & Fitch Stores, Inc.

Sadly not too far afield from my “fogger” comment, this case involves Abercrombie’s (eye roll in 3, 2, 1) “Look Policy,” that its sale-floor employees (whom it refers to as “Models”!) are required to comply with to promote its brand, which “exemplifies a classic East Coast collegiate style of clothing.”  Gag.  Employees who do not comply with the Look Policy are subject to discipline up to and including termination, because wearing inconsistent clothing “inaccurately represents the brand, causes consumer confusion, fails to perform an essential function of the position, and ultimately damages the brand.”

Samantha Elauf interviewed for a Model position at Abercrombie.  At the time, she was a seventeen-year-old practicing Muslim who wore a hijab for religious reasons.  During the interview, Elauf did not explicitly tell the Assistant Manager, Heather Cooke, that she was Muslim or that she wore her hijab for religious reasons, though Cooke did assume that Elauf was Muslim and that she wore a hijab for religious reasons.

After the interview, Cooke rated Elauf as being recommended for hire, but she took the hiring decision up the chain due to concerns over whether Elauf could wear her hijab on the sales floor.  Cooke’s District Manager told her that Elauf could not be hired because her hijab went against the Look Policy.  Cooke testified that the District Manager further told her to change Elauf’s interview score on the “appearance section” so that she was no longer recommended for hire.  Yada, yada, yada, Elauf finds out why she wasn’t hired and boom – there’s your lawsuit.

The EEOC argues that Abercrombie’s refusal to hire Elauf constituted religious discrimination and that its refusal to except her from its Look Policy on account of her hijab constituted a failure to accommodate her religion.  Abercrombie argues that Elauf never explicitly told her that she was Muslim or that she wore a hijab for religious (in contrast to other, potential) reasons.  The conflict between the two becomes  the issue presented: Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

Notice is a constant issue in the workplace, so it’ll be interesting to see how this plays out.  Stay tuned.

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