Walcheske & Luzi, LLC Employment Law Firm http://www.walcheskeluzi.com Wisconsin's Employment Lawyers Fighting Discrimination, Harassment, FMLA, Retaliation, Rights & Benefits Fri, 17 Jun 2016 20:32:45 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.9 Is Your Wellness Program “Well” According to the EEOC? Part III http://www.walcheskeluzi.com/blog/is-your-wellness-program-well-according-to-the-eeoc-part-iii/ http://www.walcheskeluzi.com/blog/is-your-wellness-program-well-according-to-the-eeoc-part-iii/#comments Fri, 17 Jun 2016 20:32:45 +0000 http://www.walcheskeluzi.com/?p=3869 Who says sequels are never as good as the original? Previously we wrote on the topic of employer wellness programs here and here. These posts concerned proposed regulations put forth by the Equal Employment Opportunity Commission to address when a wellness program complies with the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act and active litigation by the same federal agency over alleged violations by certain employers taking place through wellness plans. In the last month, however, a number of important developments have come out that employers with wellness programs should know.

First, on May 16, 2016, the EEOC released its final new rules concerning wellness programs. A big issue addressed by the rules is the question of how much is too much? In other words, how much of a financial incentive can an employer offer to an employee to participate in a wellness program for it to remain voluntary? Generally, the answer employers will find in the EEOC’s final regulations is 30%. That is, the financial incentive cannot exceed 30% of the plan’s cost for the employee. There are some nuances in what numbers you look at depending on the health plan and wellness program offered by the employer, but 30% is the general rule. The rules go into effect on July 18, 2016.

Second, on June 16, 2016, the EEOC issued a sample notice for employers offering wellness programs. One of the new requirements of wellness programs is that employers must disclose to employees who are subject to disability-related inquiries or medical examinations a notice that explains what medical information will be obtained, how it will be used, who will receive it, the restrictions on its disclosures, and the methods the employer will use to prevent improper disclosure of it. The EEOC’s sample notice can be a cost-effective tool, but employers should take care to be sure that it makes sense for their workplace.

Although the EEOC’s enforcement efforts with respect to wellness programs have proven to be controversial, employers with wellness programs are likely best positioned to avoid the agency’s wrath or other private litigation by updating policies and practices to conform to these new rules. With the release of the EEOC’s final rules, now is an ideal time to self-audit your wellness program with counsel to ensure legal compliance.

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What Do Donald Trump and the Equal Employment Opportunity Commission Have in Common? http://www.walcheskeluzi.com/blog/what-do-donald-trump-and-the-equal-employment-opportunity-commission-have-in-common/ http://www.walcheskeluzi.com/blog/what-do-donald-trump-and-the-equal-employment-opportunity-commission-have-in-common/#comments Fri, 10 Jun 2016 14:06:26 +0000 http://www.walcheskeluzi.com/?p=3866 Not a question you might anticipate reading, huh? Well, the answer is that each is taking time this summer to remind employers about national origin discrimination. For Donald Trump, this comes through the firestorm raised over his comments on the impartiality of a federal judge because he is of Mexican descent. For the EEOC, this comes through seeking public comment on recently released proposed enforcement guidance on national origin discrimination.

To be clear, Title VII would not apply to the Trump scenario because there is not an employment relationship present between the Donald and Judge Curiel. However, under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against an individual in the workplace on the basis of an individual’s national origin. As the EEOC’s proposed guidance explains, this type of discrimination is directed at an individual because he or she “is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”

Of course, national origin discrimination may take place through commonly understood means of harassing an individual because of his or her national origin or terminating or refusing to hire an individual because of his or her national origin. But there are a few unique ways in which national origin discrimination can take place as well, of which employers should be familiar. For example, the EEOC’s proposed guidance explains that an English-only language policy in the workplace may be unlawful if it is enacted “to avoid hearing foreign languages in the workplace, to generate a reason to discipline or terminate people who are not native English speakers, or to create a hostile work environment for certain non-English speaking workers.” In fact, the EEOC presumes that such English-only rules violate Title VII.

The proposed guidance is available here. The public may comment on the proposed guidance through July 1, 2016. After this date, the EEOC will review all comments and consider changes to the proposed guidance before finalization. Stay tuned for updates on our blog regarding the release of the final version of the EEOC’s enforcement guidance.

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New DOL Overtime Regulations are Here, Effective December 1, 2016 http://www.walcheskeluzi.com/blog/new-dol-overtime-regulations-are-here-effective-december-1-2016/ http://www.walcheskeluzi.com/blog/new-dol-overtime-regulations-are-here-effective-december-1-2016/#comments Wed, 18 May 2016 04:21:09 +0000 http://www.walcheskeluzi.com/?p=3863 The Department of Labor (DOL) has finally released its final rule on overtime regulations. Here’s what you need to know:

  • The standard salary level was increased from $455 per week ($23,660 annually) to $913 per week ($47,476 annually)
  • The total compensation level for “highly compensated employees” was increased from $100,000 to $134,004
  • As anticipated, the salary levels are set to be revisited (aka, increased) every three years, beginning January 1, 2020
  • The salary basis test was amended to allow nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10% of the new standard salary level ($47,476 annually). Previously, discretionary bonuses and incentive payments were not be included.

While final rule’s standard salary level ($47,476) is lower than was anticipated ($50,000 proposed), it is obviously still a dramatic increase from the previous $455 per week requirement.

The regulations are effective December 1, 2016, so now is the time to get your house in order.

Here’s what you need to do:

  • If you haven’t done so already, all positions and compensation levels need to be audited to determine whether salaries that would otherwise fall beneath the new standard level will be increased to at least $913 per week, or if another compensation system (such as changing a previously salaried individual to hourly compensation) should be utilized
  • If you will be making additional positions hourly, be sure that your timekeeping system is ready to handle them and that you are familiarizing those positions with your timekeeping systems and policies
  • Create a system now of implementing future changes to the standard salary level. The level will likely be changing (increasing) every three years, beginning January 1, 2020
  • Be sure to include your employment law attorney/firm in this process to ensure that compensation and timekeeping systems and policies are being implemented correctly. Getting it right on the front end is imperative to avoiding headaches down the road.

For questions or more information, be sure to contact us.

We will be providing more in-depth information regarding these changes and the DOL’s overtime exemptions at a forthcoming seminar. Be sure to stay tuned to our site for more information.

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May 2016 Heats Up Post-Employment Competition Law with the Defend Trade Secrets Act and White House Non-Compete Agreements Brief http://www.walcheskeluzi.com/blog/may-2016-heats-up-post-employment-competition-law-with-the-defend-trade-secrets-act-and-white-house-non-compete-agreements-brief/ http://www.walcheskeluzi.com/blog/may-2016-heats-up-post-employment-competition-law-with-the-defend-trade-secrets-act-and-white-house-non-compete-agreements-brief/#comments Tue, 17 May 2016 21:13:55 +0000 http://www.walcheskeluzi.com/?p=3861 While Wisconsin weather hasn’t seen the mercury rise as much as this author prefers, it is proving to be a hot month for post-employment competition law. Specifically, two developments have occurred at the federal government level that should draw the attention of any company that maintains sensitive information for its business.

On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 into law. Previously, trade secret protections existed only at the state level. Although state laws were all very similar, this meant that trade secret claims typically had to proceed in state court. Now, most trade secret claims will have the option to originate in federal court.

The DTSA is similar to Wisconsin’s law in many respects. However, there are three significant differences. First, the DTSA allows a federal court to issue a civil seizure order “providing for the seizure of property” to prevent the disclosure of a trade secret. In Wisconsin, the best a plaintiff could previously hope for would be a court order, subject to contempt if violated, that a party not disclose claimed-trade secret information. This is significantly different (and weaker) than actually seizing property that houses such information (i.e. electronic storage devices). Second, the DTSA grants a whistleblower immunity from civil or criminal liability for the disclosure of trade secrets to Federal, State, or local government officials to report a violation of law. Third, the DTSA requires companies to provide notice of employee immunity in any trade secret or confidentiality agreement (think restrictive covenants). If such notice is not included in these agreements, the company forfeits the right to seek additional “exemplary” damages or attorney fees in a trade secrets lawsuit. Thus, now is a good time to consider updating any employee agreements that contain trade secret or confidential information provisions.

That wasn’t all in the world of post-employment competition law, though. A few days earlier on May 5, 2016, the President Obama’s Administration released a brief entitled, “Non-Compete Agreements: Analysis of the Usage, Potential Issues, and State Responses.” Attendees of my world famous presentations on restrictive covenants know that the use of non-compete agreements has increased significantly in recent years. The White House brief presents an analysis of non-compete laws across the nation, statistics on the prevalence of non-compete agreements, and offers a critique on their wide-spread use in today’s labor market. Although the brief does not make any clear policy recommendations, it may prove to be a persuasive source of restricting the use of non-compete agreements by state legislators. This paper also follows efforts by U.S. Senator Al Franken’s (D-Minn.) and Sen. Chris Murphy’s (D-Conn.) 2015 federal bill that attempted to ban non-compete agreements for low-wage workers. Given this recent activity, we may see an increased focus to limit application of non-compete agreements at the federal level if the Democratic nominee for President wins the November election.

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EEOC Releases Summary on Leave as an Accommodation under the ADA http://www.walcheskeluzi.com/blog/eeoc-releases-summary-on-leave-as-an-accommodation-under-the-ada/ http://www.walcheskeluzi.com/blog/eeoc-releases-summary-on-leave-as-an-accommodation-under-the-ada/#comments Tue, 10 May 2016 20:31:58 +0000 http://www.walcheskeluzi.com/?p=3857 Federal agencies have been doling out the helpful information lately, with the DOL releasing a helpful guide to FMLA compliance and a new FMLA poster last month and now the EEOC releasing its creatively-titled Employer-Provided Leave and the Americans with Disabilities Act, which provides a summary of leave as a (potentially) reasonable accommodation under the ADA.

If those of you who have graced one of our seminars, you’ve heard me harping on the importance of communication, engaging in the interactive process, and trying to find a reasonable accommodation (aka, solution) when made aware of a medical condition that may be a disability under the ADA. You’ve also heard me talk (preach?) about the sticky situation presented by an employee who requests or otherwise needs time off of work because of his/her disability, and that there is no bright line rule of how much is too much.

The EEOC’s new publication analyzes that sticky situation in sections—“Equal Access to Leave Under an Employer’s Leave Policy,” “Granting Leave as a Reasonable Accommodation,” “Leave and the Interactive Process Generally,” “Maximum Leave Policies,” “Return to Work and Reasonable Accommodation (Including Reassignment),” and “Undue Hardship”—and does a nice job of providing examples of how to appropriately address leave issues (20 of them in fact) in each. It also contains links to other EEOC documents that may be of assistance.

Takeaway: Next time your company is doing compliance, internal workshops, etc., this is an extremely handy and helpful document to distribute and discuss. If nothing else, it should be reviewed by all individuals who are involved in the accommodations process, as leave as a reasonable accommodation continues to be a troublesome area in the workplace.

If you want us to lead that discussion or provide an in-depth analysis of leave as a reasonable accommodation or any other ADA-related issues in your workplace, let us know and we’ll work with you to create a workshop that meets your needs.

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New Wisconsin Court of Appeals Opinion Examines Whether “Information” can be Trade Secret http://www.walcheskeluzi.com/blog/new-wisconsin-court-of-appeals-examines-whether-information-can-be-trade-secret/ http://www.walcheskeluzi.com/blog/new-wisconsin-court-of-appeals-examines-whether-information-can-be-trade-secret/#comments Tue, 03 May 2016 17:03:42 +0000 http://www.walcheskeluzi.com/?p=3852 Last week, the Wisconsin Court of Appeals District IV issued an opinion in North Highland Inc. v. Jefferson Machine & Tool Inc., et al., which examined whether certain information could qualify as “trade secret” under state statute.  Specifically, at issue in the case was whether a manufacturing company’s confidential competitive bid amount could be protected by Wisconsin’s trade secret statute. The case presents a unique analysis on an issue not the typical subject of trade secret litigation.

In 2011, North Highland prepared a bid for Tyson Foods, Inc. related to a project at one of Tyson’s facilities. Dwain Trewyn was an employee of North Highland who helped prepare its bid. However, Trewyn left his employment and formed Jefferson Machine & Tool, Inc. with Frederick Wells. That new company eventually won the bid from Tyson Foods, Inc. North Highland’s suit alleged that Trewyn used the confidential bid amount he prepared for North Highland to undercut North Highland and win the project for Jefferson Machine. One of North Highland’s claims alleged that the bid amount Trewyn used was trade secret and misappropriated by Trewyn when he helped created Jefferson Machine.

Like most states, Wisconsin’s protections for trade secrets are set out by statute. Wisconsin’s law is at Wis. Stat. § 134.90. Trade secret is defined by the statute as “information, including a formula, pattern, compilation, program, device, method, technique, or process.” Additionally, and generally stated, the information must have economic value from not being known by the public and is the subject of reasonable efforts to maintain its secrecy. Parties in trade secret litigation often argue over one of two issues: (1) whether the information was taken, or otherwise known as “misappropriated,” by one party from the other; or (2) whether the information was subject of reasonable efforts to maintain its secrecy to qualify as trade secret.

The North Highland case did not address either of these common issues. Instead, the court of appeals looked at a unique issue of whether the information at issue could be “information” subject to the trade secret statute. The court rejected the defendants’ argument that the use of the word “including” in the statute was restrictive and that information must be a “formula, pattern, compilation, program, device, method, technique or process” to be protected. But the court also rejected the plaintiff’s argument that “information” in the trade secret statute takes a broad, dictionary definition of the term. Ultimately, the court concluded that the illustrative examples used by the law in defining “information” are narrower than a dictionary definition. The court also concluded that North Highland did not meet its burden to show that a confidential bid amount is the same type of information encompassed by the illustrative examples provided by the statute.

Trade secret statutes can often be a “fall back” position to seek legal relief when an employer does not take a more pro-active approach. For companies that rely on confidential information that may lose value over time, they may be better served by a restrictive covenant agreement with employees who have access to it. Such an agreement can protect a company from competition by an employee who can use the company’s confidential information against it. However, the North Highland opinion also presents an important lesson that not all information can be trade secret information.

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The DOL Issues New Employer Guide to FMLA and FMLA Poster http://www.walcheskeluzi.com/blog/the-dol-issues-new-employer-guide-to-fmla-and-fmla-poster/ http://www.walcheskeluzi.com/blog/the-dol-issues-new-employer-guide-to-fmla-and-fmla-poster/#comments Thu, 28 Apr 2016 13:42:42 +0000 http://www.walcheskeluzi.com/?p=3849 The Department of Labor has been busy pumping out new information for employers covered by the Family and Medical Leave Act and we’re here to pass it along.

First, the DOL released 75 pages of rollicking fun, The Employer’s Guide to The Family and Medical Leave Act. While the guide does not address many hypotheticals that often lead to employer headaches, it does do a nice job of explaining the administration of the FMLA from beginning to end, and follows a typical (aka, not complicated) leave process from the FMLA leave request through medical certification and return to work. It also contains a “Did You Know” section that summarizes and highlights some of the lesser-known provisions.

If you’re a visual person, it also contains easy-to-follow flow charts and illustrations (although to me those pale in comparison to the comic strip-esque fake phone conversations it threw in there). So, it is definitely worth having on hand as a basic resource and serves as a particularly good primer to employers who are now or who soon will be having to administer the FMLA for the first time.

Second, the DOL released a new FMLA poster for the workplace. If you’re an employer covered by the FMLA, be sure to get this poster up pronto if you don’t have one up already. For those that do already have a poster up, there is no need to replace it with this one unless you want to. The DOL didn’t make any significant informational changes. Rather, it basically reworked what was already there to be more reader friendly.

Be sure to check out these resources, as well as the rest of the information the DOL has on its site regarding the FMLA, which is fairly comprehensive. For more specific questions and issues, you know you’re always welcome to contact us.

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Eighth Circuit Opens Door to Protecting Company Without Restrictive Covenant Rules http://www.walcheskeluzi.com/blog/eighth-circuit-opens-door-to-protecting-company-without-restrictive-covenant-rules/ http://www.walcheskeluzi.com/blog/eighth-circuit-opens-door-to-protecting-company-without-restrictive-covenant-rules/#comments Mon, 25 Apr 2016 14:25:37 +0000 http://www.walcheskeluzi.com/?p=3843 Restrictive covenants are all the rage these days. These agreements put into place restrictions on when and where an employee can work after the employment relationship ends. The most common types of restrictive covenants are better known as non-compete and non-solicitation agreements. They are perhaps the most practiced way for a company to protect against post-employment competition by a former employee.

The difficulty for any employer attempting to enforce a restrictive covenant agreement is the extensive limits that states typically impose on these agreements. In Wisconsin, as is the case with most states, such agreements are disfavored. To be enforceable, a restrictive covenant agreement must (1) be necessary for the protection of the employer; (2) provide a reasonable time period; (3) cover a reasonable territory; (4) not be unreasonable to the employee; and (5) not be unreasonable to the general public. Unless drafted by a lawyer who knows this area of law, these contractual agreements can be difficult to enforce. Even then, it can be tough for such terms to survive judicial scrutiny.

A recent opinion by the Eighth Circuit Court of Appeals may put significant persuasive weight behind an alternative means of protecting against post-employment competition that avoids the scrutiny of restrictive covenant law. In St. Jude Medical S.C., Inc. v. Biosense Webster, Inc., 14-3886 (8th Cir. April 12, 2016), the Eighth Circuit awarded an employer damages for sales made by its former employee at a new employer when the employee left employment before his contractual term expired.

St. Jude signed Jose de Castro to a three-year employment agreement as a sales representative in 2011. However, in February 2012 (before his three years were up), de Castro resigned at St. Jude to begin employment at its competitor, Biosense. After some legal procedure, a jury awarded St. Jude damages from Biosense and de Castro for the cost of replacing him, lost profits, and attorney’s fees.

Significant to this blog post, the Eighth Circuit agreed with the district court that the employment agreement between St. Jude and de Castro “was a valid term-of-years employment contract, not a restrictive covenant, because it is enforceable by damages only.” In other words, the employment agreement escaped the scrutiny of restrictive covenant requirements because St. Jude was not attempting to limit de Castro’s post-employment activity but instead was only seeking to recover damages related to de Castro’s departure. Important to the reality of costs related to embarking on this type of strategy, the Eighth Circuit also agreed with the district court that, under Minnesota law, St. Jude could recover lost profits from Biosense under its tortious interference with contract claim.

Time will tell whether this becomes a popular alternative strategy of protecting against post-employment competition compared to undertaking the rigors of enforcing a non-compete agreement. This strategy may prove to be a more difficult means of protecting against post-employment competition for smaller employers because of the cost comparison to enforcing a non-compete agreement. Whereas the St. Jude strategy seemingly requires the plaintiff to undertake full litigation and the corresponding risks of recovery, parties are typically able to get a relatively quick answer on the enforceability of a restrictive covenant through declaratory or injunctive relief. The St. Jude approach also has the drawback of allowing someone like a sales employee to maintain his or her relationship and take the goodwill of his or her relationship with customers to a new employer, which is often the former employer’s greatest interest in enforcing a restrictive covenant. Regardless, this is a notable alternative strategy for employers to consider.

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Wisconsin Court of Appeals Reviews “Substantial Fault” Exclusion to Unemployment Benefits http://www.walcheskeluzi.com/blog/wisconsin-court-appeals-reviews-substantial-fault-exclusion-unemployment-benefits/ http://www.walcheskeluzi.com/blog/wisconsin-court-appeals-reviews-substantial-fault-exclusion-unemployment-benefits/#comments Tue, 19 Apr 2016 18:45:49 +0000 http://www.walcheskeluzi.com/?p=3835 Last week, the Wisconsin Court of Appeals, District IV, in Operton v. LIRC, reversed multiple lower tribunal decisions that denied unemployment benefits to an individual on the basis of a newly created statutory exclusion of “substantial fault.” In its decision, the court of appeals clarified when an individual may be denied benefits because their termination was the result of their own substantial fault.

Prior to 2014, individuals in Wisconsin could be denied unemployment benefits if an employer terminated the individual because he or she engaged in misconduct on the job. Though limited in application, the statute was helpful to all parties dealing with unemployment by listing what specific offenses qualified as misconduct.

However, in 2014, Wisconsin added another basis to deny benefits when an employee was discharged for substantial fault. Substantial fault is statutorily defined as “those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee’s employer . . . .” What ultimately proved more significant to the court of appeals is that the statute also provides what is not substantial fault, which includes:

  1. One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction.
  2. One or more inadvertent errors made by the employee.
  3. Any failure of the employee to perform work because of insufficient skill, ability, or equipment.

In Operton, the issue before the court of appeals was whether an employee who was repeatedly disciplined and ultimately discharged for a series of cash handling errors could be denied benefits under the substantial fault exclusion. The court described that over her twenty months of employment as a service clerk at Walgreens, Operton completed an estimated 80,000 cash transactions but made eight documented “cash handling errors” over that time. Operton otherwise appeared to be a good employee who was commended by her superiors for her work.

Operton was initially denied benefits by the Department of Workforce Development because it determined her termination was the result of misconduct. The administrative law judge hearing Operton’s appeal of that decision likewise found that she should be denied benefits but on the grounds of substantial fault. The Labor and Industry Review Commission (“LIRC”) and then the circuit court each affirmed the ALJ’s decision.

However, the District IV Court of Appeals reversed these decisions and found Operton was eligible for benefits. The court first took issue with LIRC’s conclusion that Operton committed a “major infraction” leading to her termination. The court observed LIRC did not explain why it concluded that Operton committed a “major infraction,” and it was not a characterization used by the ALJ.

Perhaps the court’s most significant conclusion came when it determined that repeated inadvertent errors do not constitute substantial fault for purposes of denying unemployment benefits. Here, the court focused on the employee’s intent. The court compared Operton’s situation to two previous LIRC cases in Campo v. Park Town Management Corp. and Kirkendoll v. Clean Power LLC. In Campo, LIRC distinguished “specific rule violations” from multiple warnings for unintentional errors in allowing benefits. Likewise, the court noted that LIRC focused on intent in Kirkendoll where it distinguished the employee’s inadvertent misunderstanding from substantial fault in also allowing benefits. Even if repeated over time, the court found that multiple unintentional errors do not at any point become infractions.

The court wrapped up its opinion by observing that Operton’s conduct was best described as her failure or ability to conform to Walgreens’ expectations rather than any disqualifying substantial fault. Again, the Court compared Operton’s situation to the Campo decision, where LIRC allowed benefits because “[a]n employee’s failure, despite her best efforts, to possess or acquire the skills necessary to consistently meet an employer’s expectations, is excluded from the definition of substantial fault.” However, what seemed to persuade the court was Operton’s reference to her estimate that of the 80,000 cash transactions she completed, she was accurate 99.9% of the time.

The Operton decision faces one more potential test before the Wisconsin Supreme Court if LIRC decides to appeal. As it stands, the Operton decision will probably make it more likely that some individuals will receive unemployment benefits who might otherwise have been rejected before this opinion. The Wisconsin Court of Appeals noted in its decision, the substantial fault exclusion was expected to help reduce benefit payments by approximately $19.2 million per year. This decision may make realizing those reductions more difficult for the State to achieve.

Employers challenging an employee’s application for unemployment following termination are still best positioned to be successful if the reasons leading to discharge are well-documented. However, any decision-maker is likely going to take a close look at whether the employee’s conduct was purposeful or unintentional in deciding whether the individual should be awarded benefits.

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New Wisconsin Employment Legislation from 2015-2016 Legislature http://www.walcheskeluzi.com/blog/new-wisconsin-employment-legislation-from-2015-2016-legislature/ http://www.walcheskeluzi.com/blog/new-wisconsin-employment-legislation-from-2015-2016-legislature/#comments Tue, 12 Apr 2016 16:07:10 +0000 http://www.walcheskeluzi.com/?p=3829 The last general-business floor period for the 2015-2016 Wisconsin Legislature ended on April 7, 2016. As the last general-business floor period for this two-year term, it is unlikely we will see any new employment-related legislation from Wisconsin this year. Although the term started with the possibility of some “big ticket” items making significant changes in Wisconsin, many of those did not come to pass (see restrictive covenant reform). However, employers should be aware of two different laws that recently passed this year.

2015 Wisconsin Act 345 – Bone Marrow or Organ Donor

Wisconsin has a separate Family and Medical Leave Act law that is similar to its federal counterpart by the same name. There are some significant differences between the laws, however, with which employers must be familiar. For example, federal FMLA grants an employee the right to a pool of 12 weeks unpaid leave for the employee’s serious health condition, the serious health condition of a family member, or the birth or adoption of the employee’s child. Wisconsin grants “buckets” of leave with varying time periods that depend on the reason for leave – 6 weeks of unpaid leave for the birth or adoption of a child, 2 weeks for the employee’s own serious health condition, and two weeks for the employee’s family member’s serious health condition.

Act 345 adds another qualifying reason to the list for which employees may take unpaid leave in the form of bone marrow or organ donation and recovery. An employee who provides “written verification” is entitled to up to 6 weeks of unpaid leave for either of these procedures. The law does not require that a recipient of the donation be a family member. An employer may request certification that the recipient has a serious health condition requiring the donation, the employee taking leave is eligible and agrees to serve as donor, and the amount of leave the employee will need to recover from the procedure. Like Wisconsin and federal FMLA laws, the employee taking this leave is entitled to the same or similar position they held prior to taking leave when they return to work. Act 345 became effective in Wisconsin on April 3, 2016.

2015 Wisconsin Act 203 – Franchisor Liability.

Wisconsin clarified the role of franchisors in the employment relationship by passing Act 203, which excludes franchisors as an employer when considering the employment relationship with a franchisee’s employee. The limited exceptions included in this law hold franchisors liable as an employer if they agree in writing to assume that role or exercise a heightened type or degree of control over the franchisee or a franchisee’s employees. In practice, the argument of “joint employment,” as franchisors can often find themselves included under, is most often seen in wage and hour cases involving employee claims of unpaid overtime. Although Act 203 clarifies the role of franchisors in these cases, it also excludes them from being held as an employer in unemployment benefits and discrimination cases under the Wisconsin Fair Employment Act.

Act 203 seems to be Wisconsin’s response to a recent National Labor Relations Board decision published in August 2015 of Browning-Ferris Industries of Cal., 362 NLRB No. 186. In its Browning Ferris decision, the NLRB held that for purposes of the National Labor Relations Act a joint employer relationship exists where two employers share or codetermine matters governing the essential terms and conditions of employment. The decision is widely viewed to open the door for franchisors to be brought into labor negotiations and unfair labor practice charges. However, the National Labor Relations Act is a federal law that cannot be preempted by state laws such as Act 203. In other words, Wisconsin’s Act 203 does not affect determining whether a franchisor is a liable joint employer under the National Labor Relations Act.

Act 203 became effective in Wisconsin on March 3, 2016.

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