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Not that long ago, nearly all National Labor Relations Board (NLRB) representation elections were conducted through a manual ballot process. More recently, particularly with the COVID-19 pandemic, such elections have been conducted by mail ballots. Most parties recognize it’s much more challenging to maintain the integrity and neutrality of the election process during a mail ballot election. In a recent decision, the Board held a party’s solicitation of one or more mail ballots constitutes objectionable conduct and may warrant setting aside a representation election. Mail Ballot Elections In April 2020, the United Electrical Radio and Machine Workers of America filed…
A Bradley University professor who was removed as a department chair filed an Age Discrimination in Employment Act (ADEA) claim under the “cat’s paw” theory of liability (i.e., a supervisor with no discriminatory animus was manipulated by someone who harbors such animus). The U.S. 7th Circuit Court of Appeals (which covers Wisconsin employers) threw out the claim, however, because the ultimate decision-maker conducted an independent investigation without relying on the biased supervisor’s statements. Facts Amit Sinha was an associate professor and chair of the finance and quantitative methods (FQM) department at Bradley University’s business college in Peoria, Illinois. Walter Zakahi…
Our employee has filed an Americans with Disabilities Act (ADA) request with her psychiatrist to work from home permanently. Do we have to accommodate her? She already has performance issues, and no one else on her team is a permanent remote employee. You must provide a reasonable accommodation to an employee with a disability only if it allows her to perform her “essential job functions” and doesn’t pose an undue hardship to the company. “Essential job functions” means the “fundamental” duties of the position the individual with a disability holds or is seeking. An “undue hardship” exists if the accommodation…
The Equal Employment Opportunity Commission (EEOC) recently issued guidance about whether employers may offer incentives to employees or their family members to get vaccinated for COVID-19. Although the guidelines are general in nature and don’t provide specific answers about the amount you may offer as an incentive, they do provide some clarity on the do’s and don’ts. Can You Require Employees to Get Vaccinated? The EEOC guidelines allow employers to require employees to get vaccinated, but with two major caveats: First, employers must comply with the Americans with Disabilities Act (ADA). Some employees may not be able to receive the…
Almost one year after Dane County implemented its first indoor mask mandate, residents will be able to leave the house mask-free if they choose. On Tuesday, May 18, 2021, Public Health Madison & Dane County (PHMDC) announced that all Public Health Orders, including mask requirements, gathering limits, and capacity limits will be lifted following the expiration of the current order, Emergency Order #16. All orders will be lifted as of June 2, 2021. The news comes just days after the CDC announced that fully vaccinated people can resume regular activities without a mask or physical distancing, with the exception of…
The Federal Arbitration Act (FAA) enforces voluntary arbitration agreements involving federal law, including some employment-related disputes. Section 1 of the Act exempts certain classes of workers from the arbitration requirement, however, including seamen, railroad workers, and workers engaged in foreign or interstate commerce. So, when employees don’t physically transport goods, can they be engaged in commerce and thus exempt from arbitration? The issue was recently addressed by the U.S. 7th Circuit Court of Appeals (which covers Wisconsin employers). FAA Refresher In 1925, Congress enacted the FAA, favoring arbitration to resolve employment disputes by enforcing certain arbitration agreements. Congress also placed…
The month of May marks National Motorcycle Safety Awareness Month. In Wisconsin, there are 545,587 drivers with Class M motorcycle licenses, with almost 6,000 motorcycle instruction permits issued in 2020. Unsurprisingly, motorcycles are a common presence on Wisconsin roads. Unfortunately, motorcycle crashes are similarly common throughout the state. Significant Increase in Motorcyclist Fatalities From 2019 to 2020, the Wisconsin Department of Transportation (DOT) reports that motorcyclist fatalities increased by 36.6%. This increase is especially significant, considering that the COVID-19 Pandemic led to a 16.6% decrease in the number of vehicle miles driven across the country in the first half of…
The United States Court of Appeals for the Seventh Circuit recently handed a win to employers in EEOC v. Walmart. It held that Walmart did not violate Title VII of the Civil Rights Act of 1964 (Title VII) when it withdrew an offer of employment from a candidate who, after receiving the offer, advised Walmart that he was unable to work between sundown on Friday and sundown Saturday for religious observation. The Court held that Walmart’s offer to have the candidate apply for other hourly positions was a reasonable accommodation, and that anything more would have imposed an undue hardship…
Public Health Madison & Dane County (PHMDC) issued Emergency Order #16, which goes into effect as of 12:01am on May 5, 2021. In response to Dane County’s steady trend in COVID-19 cases and hospitalizations, as well as increasing vaccination rates, the Order eases several restrictions. First, the Order increases limits for both indoor and outdoor gatherings. Up to 350 individuals may be present at indoor gatherings where food and beverages are provided, not including employees. Where food and beverages are not provided, up to 500 people may be in attendance, not including employees.  Outdoor gatherings continue to be limited…
The U.S. 7th Circuit Court of Appeals (which covers Wisconsin employers) recently upheld a decision from the National Labor Relations Board (NLRB) in a case involving Woodbridge Winery. The ruling cemented employees’ right to display a prounion message on their clothing, despite the employer’s actions to remove the messaging from the workplace. The National Labor Relations Act (NLRA) protects an employee’s right to self-organize. That is, the Act protects an employee’s right to form a union to bargain collectively with an employer. Employers are prohibited from interfering unless they can prove an employee’s exercise of the right substantially interfered with…
The Wisconsin Supreme Court has further refined the standard for what is a continuation of a legal non-conforming use.  In Village of Slinger vs. Polk Properties, LLC  the Court, in a unanimous decision, set a clear standard to judge a municipality’s effort to enforce the abandonment of a legal non-conforming use. Non-conforming uses, or structures, are created when a rezoning of a parcel takes place, causing the current use to not conform with the new zoning designation placed on the property in question. Contrary to popular belief, a municipality does not need to give personal notice to any landowner that…
Today, the Wisconsin Supreme Court, in a 4-3 ruling, held that the Governor is prohibited from declaring successive states of emergency in regards to the same enabling condition without legislative approval. This means that Democratic Governor Tony Evers is prohibited from issuing any new public health emergency orders as it relates to the COVID-19 pandemic without the approval of the Republican-controlled Wisconsin Legislature. The Court struck down Executive Order 105, and as a result, the statewide mask mandate has been eliminated. However, local mask mandates remain in place in counties, municipalities, on university properties, and on tribal lands…
Wisconsin is joining the growing number of states that are allowing restaurants and taverns to sell cocktails to-go. On Friday, March 26, Governor Evers signed Assembly Bill 32 into law, which allows restaurants and taverns to sell wine or intoxicating liquor by the glass for consumption away from their premises. This means that restaurants and taverns will be able to sell mixed drinks and glasses of wine, to-go, in sealed, tamper-proof containers as of Sunday, March 28, 2021. Prior to the passage of Assembly Bill 32, restaurants and taverns could sell full, sealed bottles of wine or liquor, but could…
Wisconsin is joining the growing number of states that are allowing restaurants and taverns to sell cocktails to-go. Today, Governor Evers signed Assembly Bill 32 into law, which allows restaurants and taverns to sell wine or intoxicating liquor by the glass for consumption away from their premises. This means that restaurants and taverns will be able to sell mixed drinks and glasses of wine, to-go, in sealed, tamper-proof containers. Prior to the passage of Assembly Bill 23, restaurants and taverns could sell full, sealed bottles of wine or liquor, but could not sell individual glasses of wine or cocktails to…
The U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) recently interpreted the Family and Medical Leave Act (FMLA) in a case involving an interesting set of facts. The employer altered an employee’s position while he was on leave, but his compensation was frozen at a preleave level for six months. He was subsequently terminated for non-FMLA reasons. Because his compensation never changed, however, the court found no harm/no foul. Facts Nathan Hickey filed a lawsuit against his employer, Protective Life Corp., alleging interference with his rights and retaliation under the FMLA. He sold warranty and…
At this point in the pandemic, most of us have been attending court via videoconferencing for about a year.  That practice may not end any time soon.  On December 11, 2020, the Director of State Courts, Randy Koschnick, filed Rule Petition 20-09 and supporting memorandum to explore the possibility of continuing Zoom hearings after the pandemic. This change would require statutory and administrative rule changes to allow the continued use of remote hearings.  Various judges and law enforcement officials articulated support for the petition and filed public comments.  Defense attorneys, on the other hand, expressed concern about situations where videoconferencing…