Employment & Labor

Many businesses work hard and invest heavily to develop and protect their intellectual property rights, including trade secrets and proprietary processes, designs, and know-how.  However, special rules apply in determining ownership of these intellectual property rights when the work product is created by employees and independent contractors or consultants, particularly in a technical or creative role.  In some cases, these special rules can result in an unpleasant surprise for companies that do not take proper steps to protect their proprietary rights.  This post will summarize some key considerations for your business. Under U.S. law, whether a company automatically owns inventions…
For those with dyslexia, my apologies. But, in 2021 Wisconsin is actually returning to what happened in 2012. That is, Gov. Evers’ 2021 budget proposal seeks to return Wisconsin to the original 2012 SSDI eligibility ban for receiving unemployment benefits. Here is the story of how disabled workers in Wisconsin continue to get the short end of the stick. The original eligibility ban, dressed up as a financial offset In November 2012, the Department introduced proposal D12-05, which stated in relevant part: 2. Create 108.05(7g) Social Security benefits. (a) If a claimant is receiving, has received, or has filed…
Ali Razak, Kenan Sabani and Khaldoun Cherdoud are all UberBlack drivers in Pennsylvania. In 2016 they filed suit claiming that they were misclassified as independent contractors. (We brought similar suits in 2016 in Illinois, Indiana and Wisconsin on behalf of Uber drivers.) Whether or not a driver is classified as an employee or independent contractor is important. If you are an employee, you are entitled to a statutory minimum wage, overtime, workers compensation if you are hurt and other benefits. Uber has long claimed that its drivers are not employees. Whether or not a worker is an employee or contractor…
Today the Employee Benefits Security Administration (EBSA), the section of the Department of Labor that handles all things employee benefit plans, posted a dedicated webpage with much anticipated (and much needed) employer tools on the “COBRA subsidy” provision of the American Rescue Plan Act of 2021 (“ARPA”), which was enacted on March 11, 2021.  The webpage can be found here COBRA Premium Subsidy | U.S. Department of Labor (dol.gov).   The new webpage provides FAQs for both workers and employers, model general COBRA notices (for new qualified beneficiaries) and model extended election period notices (for those who became qualified beneficiaries…
The Department has been announcing its new unemployment portal. The problem with this new portal is that basic functionality and information remains unchanged. All that has happened is that the Department has replaced a few menu commands with some new icons. The confusing messages about claim status, the lack of access to the legal documents that decide claim status like benefit year calculations remain, and the multiple layers and clicks to find key information and documents that might or might not be available are still present. Furthermore, there is still no instruction or guidance from the Department about how to…
Given the delays with unemployment claims in Wisconsin, eventual payment of benefits is leading to folks receiving lump sum payments of $10,000, $15,000, or even $20,000 or more. Payments that large will mean a federal and state income tax liability, IF you do not have state and federal taxes deducted automatically at the time benefits are paid — aka, tax withholding. Note: Because benefit payment levels are generally low in Wisconsin, having taxes deducted from benefit payments has usually NOT been an issue. With the supplemental funding from the $600 PUC in spring and summer of 2020 and the $300…
At the 18 March 2021 meeting of the Advisory Council, the Department began introducing its own proposals for changing unemployment law. More proposals are expected. These first proposals are appearing first because they were originally put forward during the last legislative session. The pandemic, however, meant that these proposals were never acted on. Some of these proposals are innocuous. Others combine difficult and complex issues with a less than forthright explanation. What follows are these first proposals, their 2019 versions, and an assessment of what is going on. D21-01, Creating an administrative fund Here, as in D19-09, the…
The latest rescue package signed into law on 11 March 2021 provides for: $1,400 per person direct stimulus payments for individuals earning less than $75,000 and for couples earning less than $150,000. PUA benefits extended 23 more weeks on top of the original 50 weeks (39 under CARES and 11 under Continued Assistance) for a total of 73 weeks until 6 September 2021. PEUC benefits extended 29 more weeks on top of the original 24 weeks (13 under CARES and 11 under Continued Assistance) for a total of 53 weeks until 6 September 2021. The additional $300 PUC per week…
With the pandemic coming up on a year, many folks are seeing notices on their portal about needing to file a new initial claim because they have a new benefit year. The notice looks something like the following: Your current benefit year has ended with the week you just filed a weekly claim for. If you want to receive benefits for the week ending 03/20/21 you must file an initial claim application to start a new benefit year. To file an initial claim click on the “File Initial Claim” button. If you do not need to file for the week…
On March 11, 2021, the Wisconsin Department of Health Services (DHS) announced the next eligible group for COVID-19 vaccinations. The group, designated Group 1c, extends vaccine eligibility to Wisconsin residents ages 16 and older with certain medical conditions that have a greater risk of severe infection from COVID-19. Such medical conditions include, but are not limited to, asthma, cancer, heart conditions, hypertension or high blood pressure, obesity (body mass index (BMI) of 30-39 kg/m2), overweight (BMI of 25-29 kg/m2), and Type 1 or 2 diabetes. The full list of medical conditions is available at: https://www.dhs.wisconsin.gov/covid-19/vaccine-about.htm. Group 1c is more…
Previous posts detailed the length of time and number of cases in the unemployment backlog in part 1, some of the mistakes by the Department that allow cases to be re-opened in part 2, a place for stories and advice about how to find assistance in part 3, how most claims in Wisconsin — and unlike in other states — are being denied and thereby creating a ginormous backlog in hearings in part 4, and in part 5 how the Department’s big push to fix the backlog in December 2020 was creating a hearings backlog and…
In this, the final installment in our series discussing the Biden Administration’s workplace initiatives, we will now discuss some of the potential changes forthcoming from the U.S. Department of Labor that employers should note, including changes to the independent contractor test under the Fair Labor Standards Act, a narrowing of the “joint employer” test under the National Labor Relations Act, an expansion of the Family and Medical Leave Act to provide paid leave through passage of the Family and Medical Insurance Leave Act, and a determined Congressional effort to raise the federal minimum wage to $15 per hour. Independent Contractor…
A lengthy primer on the unemployment claim-filing process is now available. Anyone filing an unemployment claim in Wisconsin MUST read this primer. It covers: initial claims weekly claims or weekly certifications monetary eligibility — aka, your benefit year calculation non-monetary eligibility — initial determinations relating to a job separation, not being able and available, failing to satisfy a Department job search requirement, or failing to satisfy some other Department claim-filing requirement Partial eligibility — reporting on your weekly certifications your part-time work while collecting unemployment benefits unemployment fraud/concealment benefit over-payments, offsets, and collections: how to object or appeal unemployment hearings…
Beginning February 2021, there is additional rental assistance (WERA) for those who are facing eviction or are behind in their rent payments. Here is a link to the state Department of Administration website with contact information for each county. (https://doa.wi.gov/Pages/WERA.aspx). Under the “Want to Apply?” section, click on the highlighted box that says “Your Local Community Action Agency,” which will take you to the WERA page. In Dane County, these applications are being handled by the Tenant Resource Center. Here are income limits for Dane County, which will vary somewhat for other counties: 1 Person: $35,050 2 People:…
A basic and important question has lingered in the Seventh Circuit since 2008: What is the proper standard of causation for proving disparate treatment under the ADA, as amended? The Two Standards There are two likely standards of causation which the court would apply: “but-for,” and “motivating factor.” “But-for” causation requires plaintiffs to show that the adverse employment action would not have occurred if they were not disabled and everything else remained the same.1 By contrast, a “motivating factor” analysis allows plaintiffs to prove discrimination if an individual’s disability was one reason among other legitimate reasons for the adverse…
Gov. Tony Evers signed Senate Bill 1 into law on February 26, 2021, which increases protection for Wisconsin employers from COVID-19-related civil liability. Specifically, the recently enacted law shields entities from civil liability for the death, injury or damages related to a COVID-19 infection of any individual, employee or patron who may have been infected because of an act or an omission through the entity’s performance of its functions or services. This civil immunity, however, does not extend to an entity’s “reckless or wanton conduct or intentional misconduct.” The law defines entities broadly to include partnerships, corporations, associations, governmental units,…