In a recent case before a state appeals court, the Wisconsin Labor and Industry Review Commission (LIRC) appealed a circuit court ruling, reversing its determination that an employee hadn’t suffered a mental injury compensable under the Worker’s Compensation Act.
Background
Timothy Wotnoske was employed by the Wisconsin Department of Corrections (DOC) as a correctional officer. He filed a worker’s compensation claim for post-traumatic stress disorder (PTSD), depression, and panic disorder after experiencing several incidents, including working in prisons during
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Axley Attorneys Blogs
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Nip Office Gossip & Drama in the Bud
What’s the best way to deal with office gossip and drama? The resulting conflict is hurting productivity and morale.
As we get to the other side of the pandemic and the interruptions COVID-19 caused in the workplace, employees are beginning to come back to work in person rather than working totally remotely. With that comes the age-old office drama issues.
Office drama and gossip can be minor, but left unchecked, they can lead to reduced productivity and morale, if
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Copyright Ownership of Creative Works Made for Hire
When an employer directs an employee to create a work that would trigger copyright protection, who owns the copyright? What if an employer has engaged the services of an independent contractor, who creates the work for the business? Although employers may not run into this situation very often, it has the potential to create big problems if they aren’t aware of the contours of this doctrine.
Copyright Protection Applies to Creative Works
Our federal copyright laws protect all “original
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Time For Handbook Review
On August 2, 2023, the National Labor Relations Board (the “Board”) adopted a new standard for evaluating the legality of workplace rules under the National Labor Relations Act (the “NLRA”). Employers in both unionized and non-unionized settings should review their employee handbooks and policies to ensure compliance with the new standard established in Stericycle, Inc., 372 NLRB No. 113 (2023).
As the Board noted, it is well established that the dominant purpose of the NLRA is to protect the
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7th Circuit Affirms Dismissal of First Amendment Retaliation From Sheriff Candidate
The U.S. 7th Circuit Court of Appeals recently considered (and rejected) a “campaign of harassment” theory from a sheriff candidate. This decision demonstrates that an employer’s actions, while individually not enough to prove that an employer’s actions were motivated by the employee’s speech, collectively were enough to demonstrate a successful claim for retaliation.
Facts
Kevin Deeren was a Trempealeau County Deputy Sheriff who announced candidacy for Trempealeau County Sherriff in late 2017. Deeren had applied for employment with the
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The Supreme Court Strikes a New Chord in Andy Warhol Foundation v. Goldsmith
In a case involving a 1980’s rocker, an iconic figure in the pop art movement, and a celebrity photographer, the Supreme Court recently tweaked the four-part copyright fair use test in its decision in Andy Warhol Foundation v. Goldsmith. The shift in fair use, though subtle, may have profound implications for artists who build upon existing creative works—and, of course, businesses and persons who may want to use resulting copyrighted material.
Background
In 1981, celebrity photographer Lynn Goldsmith photographed
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Hunting Lease Issues
Hunting leases present a number of issues, which if not addressed in writing, can lead to misunderstandings at best, and unexpected liability or litigation at worst. Because both the owner’s and the hunter’s needs vary depending on the type of land and the type of hunting involved, each leasing situation presents its own set of unique requirements and expectations. An owner may be a farmer who allows hunting only during gun deer season or spring turkey hunting season. This
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Hire Independent Contractors, But You Might Still Owe Unemployment Insurance Tax
Wisconsin businesses should think twice before assuming that hiring independent contractors relieves them of the obligation to pay unemployment insurance taxes. Wisconsin law requires payment unless an employer can prove at least six elements of a nine-factor test. As Amazon learned recently, Wisconsin liberally construes its unemployment insurance statute with the goal that all workers, even those believed to be independent contractors, are covered by unemployment insurance.
When is a Driver Also an Employee?
In a recent case involving
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Fee Shifting Cases Can Be a Minefield For Both Plaintiffs & Defendants
Defendants and their counsel normally fear fee shifting cases. But plaintiffs and their counsel can get trapped as well.
Ellis v. Whitewater Auto, Inc.,[1] and the nearly 3 ½ years from case filing to the damages award, illustrates this. The Plaintiff was awarded $4,999 in lost overtime wages and liquidated damages, and for not having received payment for the last two days of work.
This Fair Labor Standards Act (FLSA) case is fee shifting for a prevailing plaintiff,
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The Stuff Dreams Are Made Of: Copyright in Fictional Characters
When branding a new product, many businesses allude to copyrighted works either to honor a creative work or cash in on a pop culture success. The practice is very common across a wide variety of products, including t-shirts, stickers, craft beers, and even car commercials. You may even be considering alluding to a copyrighted work for your next product. Unfortunately, brand creators are often unaware of the dangers associated with the practice as it risks trademark and copyright infringement.
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Surveillance in the Workforce: An Update From the NLRB
The National Labor Relations Board (NLRB) continues to move the needle on its interpretation of the National Labor Relations Act (NLRA) in favor of unions. For example, in Memorandum GC 23-02 entitled “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights,” General Counsel Abruzzo outlined a new framework for protecting employees from intrusive or abusive forms of electronic monitoring and automated management that may interfere with Section 7 activity.
What Does the Memo
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New Law Addresses Nonmetallic Mining Regulations
The recent shared revenue bill negotiated, passed, and signed by the Wisconsin State Legislature and Governor Evers made statutory changes to regulating nonmetallic quarry operations. These changes balance local authority and the need for construction materials (e.g., gravel, crushed stone, and sand) while ensuring safety and regulatory consistency.
Local Regulation
Local political subdivisions may still enact nonmetallic mining ordinances requiring a conditional use permit or a nonmetallic mining license. Any new regulation requiring such permit or license will not
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Employers Beware: NLRB General Counsel Targets Non-Compete Agreements
Non-compete agreements continue to be under attack by federal agencies. The Federal Trade Commission (the FTC) published a proposed rule in January 2023, that would ban all forms of non-compete agreements except in the context of the sale of a business. The FTC is in the process of reviewing thousands of comments as part of its rulemaking process and is expected to finalize a decision in 2024. In the event it chooses to restrict non-compete agreements, the FTC will
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Copy That! Copyright Infringement in Branding
When branding a new product, many businesses allude to copyrighted works either to honor a creative work or cash in on a pop culture success. The practice is very common across a wide variety of products, including t-shirts, stickers, craft beers, and even car commercials. You may even be considering alluding to a copyrighted work for your next product. However, brand creators are often unaware of the dangers associated with the practice, as it risks trademark and copyright infringement.
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Employers Beware: NLRB Instructs on Harsh Penalties for Repeat Offenders
In its recently decided 2-1 decision, the National Labor Relations Board (NLRB) discussed additional remedies it may now consider in cases involving employers that have engaged in what the Board considers repeated or obvious disregard for employees’ rights under the National Labor Relations Act (NLRA). The decision is consistent with NLRB General Counsel Jennifer Abruzzo’s agenda seeking expansion of the remedies available under the Act and the Board’s continuing trend to endorse such expanded remedies.
Board Finds Unlawful Conduct
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Remote Working Complicates Privacy Expectations
Recently, a CEO of a certain furniture company went viral after telling her employees, on a recorded videocall, to “leave Pity City” regarding their bonuses being cancelled. While the video may leave you scratching your head, it may also leave employers wondering about the legality of recording video or telephone calls in the workplace.
What Does the Law Say?
Like a lot of employment law questions, there is a legal answer and a best practice answer to this question.
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