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On March 15, 2024, the United States Supreme Court issued a decision in Lindke v. Freed, 601 U.S. 187 (2024), which articulates a two-part test for when a public official’s social media activity constitutes state action. According to the Court, a public official’s posts on social media are attributable to the government if (1) the official had the actual authority to speak on the government’s behalf, and (2) the official purported to speak on the government’s behalf.
Background
James
Continue Reading When is Social Media Activity by Officials Attributable to the Government?

The Federal Trade Commission has issued its final Non-compete Rule, imposing a nationwide ban on non-compete clauses in employment agreements. Unless legal challenges to the Non-compete Rule are successful, the Rule will go into effect in August of 2024. Although the Rule will nullify traditional non-compete clauses, it does not ban non-disclosure clauses or employee non-solicitation clauses. In addition, the Rule does not affect non-compete clauses entered as part of a bona fide sale of an equity interest
Continue Reading The FTC Non-compete Rule – Six Takeaways

On February 8, 2024, the United States Supreme Court issued a decision finding that former employees who filed a federal whistleblower retaliation claim under the Sarbanes-Oxley Act (“SOX”) must only show that the protected activity was a “contributing factor” to an employee’s adverse employment decision. The Court found that whistleblowers need not show “retaliatory intent,” in contrast to other federal anti-discrimination laws.    
Facts
The petitioner, Trevor Murray was employed as a research strategist at securities firm USB. In
Continue Reading U.S. Supreme Court Finds Former Employee Must Only Prove Protected Activity Was a “Contributing Factor” in Whistleblower Suit

A restaurant employee works in two different job categories – as kitchen help for above the minimum wage and as waitstaff for $2.13 per hour plus tips, for example – and the employee works less than 40 hours in each job.  However, the employee works over 40 hours for the two jobs combined.  Is this employee entitled to overtime pay and, if so, for which job?
The Fair Labor Standards Act (FLSA) and parallel state laws require that non-exempt
Continue Reading Calculating Overtime for Employee with Two Different Pay Rates

Recent changes in law and trends may affect your use of Nondisclosure Agreements (NDAs). NDAs should be used strategically and reviewed every year to ensure that your form complies with the law and puts your best foot forward to optimize business strategy. Nondisclosure Agreements (NDAs), also referred to as confidentiality contracts, noncompete agreements, and restrictive covenants, can protect confidential information that if used inappropriately, would harm your business or bottom line.
One-way NDAs and Mutual NDAs
Employer-employee NDAs are
Continue Reading Nondisclosure Agreements: Trends to Watch

On March 8, 2024, Judge J. Campell Barker, a federal district court judge in Texas, issued a decision striking down the National Labor Relations Board’s controversial joint employer rule, just three days before it was set to go into effect. The United States Chamber of Commerce, a coalition of business groups, filed the lawsuit shortly after the Board released the rule in October 2023. The joint employment concept refers to situations in which two or more legal entities share
Continue Reading National Labor Relations Board’s Joint Employment Rule Struck Down

The United States Department of Labor has published it final rule on the classification of a worker as either an employee or an independent contractor, 29 CFR, Part 795 (January 10, 2024).  Under the Rule, the DOL returns to the “totality of the circumstances test,” with a focus on the worker’s economic dependency on the employer.
Why Properly Determining Worker Status is Important
Whether a worker is considered an employee or an independent contractor (“IC”) is a legal distinction
Continue Reading Final Rule: Six Factor Test for Determining When a Worker is an Independent Contractor

One of our employees is on intermittent Family and Medical Leave Act (FMLA) leave.  She’s gotten sick and claims it is unrelated to her reasons for being on FMLA leave.  Can we include these days in her FMLA time and have them go unpaid?
Your inquiry raises a question regarding designation of leave as FMLA leave.  In this instance, the employee desires not to have her absences treated as FMLA-qualifying leave whereas you, the employer, wish to treat them
Continue Reading Don’t Automatically Count Absences Against FMLA Leave

As the demand for renewable energy sources continues to grow worldwide, landowners and developers have realized the potential in harnessing the power of solar and wind energy in Wisconsin. Wisconsin is well known for having large swaths of flat, open land, often used for traditional farming activities. Such topography is perfect for energy companies looking to expand their generating capacity, often paying landowners a premium for the use of such land.  

Leasing and easement arrangements are the essential methods
Continue Reading Solar and Wind Lease Agreements

Imagine the following scenario: An employer issues a physical check to an employee (or another individual). The employee mobile deposits the check into their bank (Bank A). Then, the employee quickly takes the check to a fast-cash check cashing store and deposits the check again. This is known as double presentment.
Intuitively, one might think that the fast-cash store, being the second to receive the check, is out of luck and will need to recover its money from the
Continue Reading Double Trouble: What to Do When an Employee Cashes Their Paycheck Twice

The Fair Labor Standards Act (FLSA) requires an employer to pay overtime for activities that are merely incidental to employees’ core job responsibilities when the employer elects—either by contract, custom, or practice—to pay for those incidental activities. However, are those incidental activities compensable even when an employee fails to meet the requirements established by the employer’s custom or practice? The U.S. Court of Appeals for the 7th Circuit (whose rulings apply to all Illinois, Indiana, and Wisconsin employers) recently
Continue Reading 7th Circuit: Overtime Pay Not Mandated for Incidental Activities

How many years do we need to keep new hire drug screens and workers’ compensation documents?
In Wisconsin, there are different retention periods depending on the type of employment documents at issue. In general, employment records must be retained for three years. However, since there may be records that pertain to multiple issues and are subject to state or federal law, it’s best practice to observe the longest of any overlapping retention periods.
For workers’ compensation documents in Wisconsin,
Continue Reading Hold On! You Might Need to Retain that Employment Document

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
Continue Reading Mental Injury Not Compensable Under Worker’s Compensation Act

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
Continue Reading Nip Office Gossip & Drama in the Bud

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
Continue Reading Copyright Ownership of Creative Works Made for Hire

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
Continue Reading Time For Handbook Review