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
Continue Reading 7th Circuit Affirms Dismissal of First Amendment Retaliation From Sheriff Candidate
Latest from Axley Publications
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
Continue Reading The Supreme Court Strikes a New Chord in Andy Warhol Foundation v. Goldsmith
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
Continue Reading Hunting Lease Issues
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
Continue Reading Hire Independent Contractors, But You Might Still Owe Unemployment Insurance Tax
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,
Continue Reading Fee Shifting Cases Can Be a Minefield For Both Plaintiffs & Defendants
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.
Continue Reading The Stuff Dreams Are Made Of: Copyright in Fictional Characters
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
Continue Reading Surveillance in the Workforce: An Update From the NLRB
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
Continue Reading New Law Addresses Nonmetallic Mining Regulations
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
Continue Reading Employers Beware: NLRB General Counsel Targets Non-Compete Agreements
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.
Continue Reading Copy That! Copyright Infringement in Branding
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
Continue Reading Employers Beware: NLRB Instructs on Harsh Penalties for Repeat Offenders
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.
Continue Reading Remote Working Complicates Privacy Expectations
Insurance and Multiple Entities: Two Necessary Evils?
One of the first discussions I have with new business clients is about how their assets are held and if they have sufficient insurance for the risk that they have in the operation of the business. Oftentimes, businesses don’t recognize that they are at risk because insurance agents are not required to tell you what insurance you need to protect yourself from specific risks. Unless you pay an insurance professional a separate fee to advise you on what insurance
Continue Reading Insurance and Multiple Entities: Two Necessary Evils?
Protect the Goose that Lays the Golden Eggs: Perpetuation Planning and Selling Your Agency
The last several years have seen an unprecedented number of insurance agency purchase and sale transactions. This flurry of activity has led to increased valuation and sale prices for agencies. Now is the time to make sure you have a plan to perpetuate your agency. A perpetuation plan will allow your agency to care for your clients, and to take care of you. Not only is perpetuation planning in your best interest, some insurers, as a condition of agency
Continue Reading Protect the Goose that Lays the Golden Eggs: Perpetuation Planning and Selling Your Agency
What are Riparian Rights & Why are They Important?
It is that time of year again. Summer is around the corner, and lakefront and riverfront property owners all across the state are starting to think about when to get their piers back in or what day they want to drop their boat in. Inevitably, this time of year is when neighbors old and new may start to interfere with other waterfront property owners’ rights to access the water. One of the many issues surrounding lake and river property
Continue Reading What are Riparian Rights & Why are They Important?
That’s Not Your Name! Trademark 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 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. This
Continue Reading That’s Not Your Name! Trademark Infringement in Branding