Walcheske & Luzi, LLC Employment Law Firm http://www.walcheskeluzi.com Wisconsin's Employment Lawyers Fighting Discrimination, Harassment, FMLA, Retaliation, Rights & Benefits Wed, 30 Jul 2014 14:40:38 +0000 en-US hourly 1 http://wordpress.org/?v=3.9 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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Take It From Boomer: FMLA Interference Is Easy http://www.walcheskeluzi.com/blog/take-boomer-fmla-interference-easy/ http://www.walcheskeluzi.com/blog/take-boomer-fmla-interference-easy/#comments Fri, 25 Apr 2014 14:28:30 +0000 http://www.walcheskeluzi.com/?p=3297 Former NFL Quarterback Boomer Esiason (did you know his real name is Norman Julius Esiason?) was recently criticized for comments he made relating to taking time off for the birth of a child.  His comments were specifically aimed at New York Mets’ second baseman Daniel Murphy, who missed two games, including Opening Day, for the birth of Murphy’s child.  Under MLB rules, a player can miss up to three games for paternity leave.

If you want to watch/listen for yourself, here’s a video of what happened.  For those who want to save the bandwidth and take our word for it, Boomer stated that if he was Murphy, “I would have said, ‘C-section before the season starts.  I need to be at Opening Day.  I’m sorry; this is what makes our money.  This is how we’re going to live our life.  This is going to give my child every opportunity to be a success in life.  I’ll be able to afford any college I want to send my kind to, because I’m a baseball player.”  Ah, the sounds of sensitivity.   If ever made in the workplace: ah, the sounds of a potential Family and Medical Leave Act interference claim.

An FMLA interference claim is what it sounds like – an employer (usually the supervisor or other management employee who receives the FMLA request) does something or takes some action to interfere with an employee’s right to use FMLA leave for, in this instance, the birth of a child.  All it takes is statements like those made by Boomer to get an employer in hot water, particularly if those comments are followed-up by another action, such as not approving the leave.  As Boomer proves, it’s that easy.

For this reason, workplace training is incredibly important.  As Wisconsin FMLA attorneys, we want you to know that regardless of their personal views, supervisors and other management employees need to understand that it is not their role to judge an FMLA request.  Although there are times that perhaps a request is not for FMLA-qualifying reasons or more information is necessary to make a determination on whether a request should be granted, there is no room for slip-ups or judgmental statements.  Those only open the door to legal claims that are otherwise completely preventable.

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Wisconsin Social Media Bill Signed Into Law http://www.walcheskeluzi.com/blog/wisconsin-social-media-bill-signed-law/ http://www.walcheskeluzi.com/blog/wisconsin-social-media-bill-signed-law/#comments Tue, 08 Apr 2014 21:40:13 +0000 http://www.walcheskeluzi.com/?p=3279 Bill Signing 40814 51 (1)

Walcheske & Luzi, LLC Attorney Jesse Dill joins Governor Scott Walker and Legislators for the signing of the Wisconsin Social Media Protection Act

On April 8, 2014, Wisconsin joined the list of states with new social media legislation added to the books. Governor Scott Walker signed the hot topic bill, known as the Social Media Protection Act, into law. The bill not only represents the legislature’s efforts to keep up with technology, but it has also been touted as an example of bipartisanship with both sides of the aisle strongly supporting the law.

The law prohibits an employer from requesting social media login information to access an applicant’s or employee’s social media account. It also prohibits an employer from asking an applicant or employee to pull up their social media account to review the contents on the spot. The law specifically provides that an employer may review information that is publicly available along with several other important exceptions. While Wisconsin joined several other states in prohibiting educational institutions from engaging in the same conduct, Wisconsin uniquely also places similar restrictions on landlords.

Look for more updates and a full review of the new law in future posts on the Walcheske & Luzi Wisconsin Employment Law Blog. Also for more information, see BizTimes Milwaukee.

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Lessons from the NLRB Northwestern Decision for Anyone Who is Not a Private University Administrator or Athlete http://www.walcheskeluzi.com/blog/lessons-nlrb-northwestern-decision-anyone-private-university-administrator-athlete/ http://www.walcheskeluzi.com/blog/lessons-nlrb-northwestern-decision-anyone-private-university-administrator-athlete/#comments Wed, 02 Apr 2014 14:21:00 +0000 http://www.walcheskeluzi.com/?p=3265 Sports and politics talk radio were rocked on March 26 with the news that National Labor Relations Board, Region 13 Regional Director Peter Ohr determined that Northwestern University’s football team athletes could form a union. The National Labor Relations Board is the federal agency that administers the National Labor Relations Act. Director Ohr’s extensive opinion found that the athletes were compensated employees under the National Labor Relations Act and subject to union representation.

While the decision created seemingly endless hours of talk show content, it may be of limited concern for the average employer. First, this decision is the first step in a long line of appeals with the National Labor Relation Board’s administrative processes and federal courts before anyone can consider it “final.” Second, the conclusions really only apply to private university athletes. The National Labor Relations Act applies to private sector employees. State law dictates the collective bargaining rights of public employees. In Wisconsin, Governor Scott Walker’s signature legislation, 2011 Act 10, severely limits those rights.

But there are some lessons in the opinion to take away for other employers. Here are a few of them.

1. You may not run a football team with athletes as employees, but you may have student interns who are compensable employees.

While not a lot of employers are running a Division 1, major conference football program, a lot of employers have a “student intern” who comes to their workplace on a regular basis. Some of the intern’s duties might include answering phones and making photocopies, which could qualify that unpaid intern as an employee subject to Fair Labor Standards Act requirements. Whether unpaid interns qualify as compensable employees is a hot button issue in wage and hour litigation. We’ve blogged about this issue before and it is worth anyone’s time to review if you aren’t already aware of it. Litigation over that small amount you might owe one intern can easily turn into a mountain of liability under the Fair Labor Standards Act and Wisconsin wage and hour laws.

2. If you have a social media policy, make sure it complies with state and federal law.

More and more states are passing laws that limit the social media information employers (and educational institutions) can require of employees (and students). Wisconsin is about to join the list of states that prohibit employers from asking for applicant or employee social media account information. Director Ohr’s opinion described a Northwestern football program policy that requires players to accept his coach’s friend request and otherwise allows the program to monitor athlete accounts. This policy would be unlawful under Wisconsin’s proposed Social Media Protection Act.

On the federal side, there are a number of laws that could be implicated if an employer seeks social media account information. Most notably, the National Labor Relations Board has taken a significant interest in employer policies that restrict employees’ Section 7 rights under the National Labor Relations Act. While employers should have a social media policy in place, making sure that policy is lawful is a complex task that should include the assistance of counsel familiar with these laws.

3. All employers need to be aware of their rights and duties under the National Labor Relations Act.

While the labor movement took a major hit in Wisconsin after 2011 Wisconsin Act 10 and the national private sector union membership rate is only 6.7%, the National Labor Relations Board remains a force to be reckoned with for almost any employer. As mentioned above, the National Labor Relation Board’s interest in social media policies took many employers by surprise because the National Labor Relations Board found many policies unlawful at companies with non-unionized workforces. Although the recent attempt to impose notice posting requirements through the National Labor Relations Board rulemaking process appears dead for now, other rule changes that are likely to increase its influence remain. These include changes to the representation case procedures that would speed up the time between a representation petition and election. So, just because employees aren’t unionized, does not mean an employer should tune out the National Labor Relations Act.

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