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The U.S. Court of Appeals for the Seventh Circuit recently reversed a decision from the District Court for the Eastern District of Wisconsin, which had dismissed a Title VII employment discrimination complaint for failure to state a claim. The law underpinning the District Court’s decision had been overruled by the Supreme Court of the United States, resulting in the Seventh Circuit reversing the District Court. In its April 17, 2024, decision in Muldrow v. City of St. Louis, the…
Continue Reading Seventh Circuit Enforces Supreme Court’s Landmark Overhaul of Standards for Title VII Employment Discrimination Claims

On May 2023, the National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memo outlining her position that non-compete agreements in employment contracts could violate worker’s rights under the National Labor Relations Act (NLRA). GC Abruzzo was critical of non-compete agreements as they restrict employee’s mobility, potentially deter union organizing, and suppress wages. On October 7, 2024, GC Abruzzo released GC Memo 25-01 (the 2024 Memo), which outlined two new concepts relative to how the NLRB would…
Continue Reading NLRB Continues Scrutiny of “Stay-or-Pay” Provisions and Clarifies Heightened Remedies for Unlawful Non-Compete Agreements

On May 31, 2024, U.S. Occupational Safety and Health Administration’s (OSHA) revisions to the “walkaround rule” went into effect. The walkaround rule sets forth a process for OSHA to conduct on-site inspections and previously allowed an employee representative to attend the inspection. 
What’s New with the Rule?
The revisions to the walkaround rule alter the regulation by removing the requirement that an employee representative be an employee of the employer being inspected. Under the revised rule, the representative…
Continue Reading Updated Walkaround Rule: OSHA Allows Union Access During Site Inspection

If we have a drug-free workplace policy and implement random testing, can we fire an employee who tests positive even if the employee simply used marijuana outside the workplace and wasn’t impaired?
The short answer is, yes.
Employers in Wisconsin are allowed to do random drug testing of their employees. If an employer chooses to do so, the employee handbook should advise employees of the nature of the testing.
In Wisconsin, and throughout the United States, the vast majority…
Continue Reading Employment Termination with a Drug-free Workplace Policy & Implemented Random Testing

Termination of a publicly appointed official, such as a clerk, administrator, fire chief, or similar position, requires careful planning due to the many legal implications that are in play.  This article provides an overview of the stages involved in the termination process of a public employee.
Early Considerations
First, before initiating the termination process, a substantial investigation supported by documentary evidence is vital.  Ideally, the documentation is in place long before the time that a termination is even a…
Continue Reading Terminating a Publicly Appointed Official

A new federal law went into effect and likely will affect many business entities in Wisconsin and the United States, and in particular, many small businesses that may not even be aware of the new law. The Corporate Transparency Act (CTA) was enacted on January 1, 2021, as part of the Anti-Money Laundering Act of 2020 in the National Defense Authorization Act and went into effect on January 1, 2024.    
What is the CTA?
The CTA was enacted…
Continue Reading The Corporate Transparency Act: Does it Apply to my Business?

As the saying goes, nothing is certain in life but death and taxes, and estate planning encompasses both. Despite this certainty, many of us avoid thinking about the end of our life and neglect making an estate plan. There are things you can do now that can save you, your spouse, and your loved ones a lot of trouble and aggravation.
Lifetime documents: The Impact of Powers of Attorney and Living Wills
Estate plans almost certainly will include a…
Continue Reading Who Needs a Will Anyway: Why Estate Planning is So Important

A federal court judge has issued an injunction barring the Federal Trade Commission from implementing its non-compete rule slated to go into effect on September 4, 2024. The FTC rule banned most non-compete clauses in employment agreements and required, among other things, that employers provide all employees subject to a non-compete clause with notice that the employer could no longer enforce it. The FTC rule is now a nullity unless the FTC successfully appeals the ruling, which could take…
Continue Reading FTC Non-Compete Ban Struck Down

A “pedestrian way” is defined in the statutes as “a walk designated for the use of pedestrian travel.”  (Wis. Stat. § 346.02(8)(a)).  But is a sidewalk a pedestrian way?  The Wisconsin Supreme Court, in a case of first impression, answered that question, “NO.”

In the case of Sojenhomer LLC v. Village of Egg Harbor, the Supreme Court held, in a 4-3 decision, that the definition of “pedestrian way” does not include “sidewalks” for the purpose of determining the…
Continue Reading A Municipality’s Power to Condemn: A Sidewalk and Pedestrian Way Walk Into A Bar…

A former employee who was fired has requested a copy of her personnel file. What documents would she be entitled to receive? 
In Wisconsin, current and former employees have a statutory right to view and copy their personnel records. Below are answers to some common questions regarding what rights a former employee has to their personnel file. 
What types of personnel records must be provided?
In Wisconsin, every employer must allow a former employee to inspect any personnel documents…
Continue Reading Employee Personnel Files

Wisconsin has over 15,000 lakes, and summer often is filled with swimming, boating, and enjoying the state’s waterways. It is also a time where the importance of understanding riparian rights, property rights associated with Wisconsin’s lakes, rivers, and waterways, is heightened. Disputes between riparian owners (lake and river property owners) have become increasingly common as new construction, crowded shorelines, and changes in watercraft have led to increased contact and increased conflict. The latest iteration of this conflict centers around…
Continue Reading Trends in Riparian Rights: Update

When first passed on March 9, 2011, Wisconsin Act 10 restricted collective bargaining rights for public sector employees. Act 10 allowed “public safety employees” to continue to collectively bargain with their municipal employers, but effectively eliminated collective bargaining rights for all other municipal employees. Act 10 survived legal challenges in both Federal[1] and Wisconsin Courts[2].

On July 3, 2024, Dane County Circuit Court Judge Frost issued a decision and found that parts of Wisconsin’s Act 10 …
Continue Reading Potential Restoration of Collective Bargaining Rights for Municipal Employees in Wisconsin? 

What’s considered compensable time during the onboarding process under the Fair Labor Standards Act (FLSA)—for example, time completing paperwork before the start date, as well as time reviewing policies and procedures and completing training?
The FLSA generally counts a new hire’s time spent in orientation and on completing onboarding paperwork and job training as hours worked that must be compensated, even if the orientation, onboarding, or training occurs outside regularly scheduled hours or away from the employer’s place of…
Continue Reading Compensable Time During the Onboarding Process Under the Fair Labor Standards Act (FLSA)

The Federal Trade Commission’s (“FTC”) Non-compete Rule deals a death blow to traditional employment non-compete covenants. Assuming challenges are unsuccessful, the Rule will go into effect in August and will negate all existing non-compete clauses with a few exceptions. For many employers, the Rule will remove a significant hedge against competition.  However, non-disclosure provisions, which are not banned under the Rule, if worded carefully, can still provide valuable protection against unfair competition.
Key Elements of the Rule
A non-compete…
Continue Reading Adapting to the FTC’s Non-Compete Rule

Before addressing the specific question about which state’s laws would apply for the enforcement or consideration of a severance agreement, it is important to address the importance of such agreements in the first place. Certainty is important in all business operations, and discharging employees is no exception.
When you are discharging an employee from your company, in many instances it may be beneficial to the employer to provide a severance package to the departing employee. While the employee may…
Continue Reading When Crafting a Severance Agreement, Should You Follow the Guidelines of the State the Employee Resides/Works in or the State Where the Company is Incorporated?

Many bar and restaurant owners are aware of the need to enter into licensing agreements for the music they play over the speakers in their establishments. But with shrinking profit margins due in part to rising food and labor costs, music licenses often get put on the back burner, which could create problems down the road. If an establishment inadvertently lets a license lapse, the establishment could end up facing a lawsuit—the last thing any bar or restaurant owner…
Continue Reading When It’s Time to Pay the Piper: Music Licenses and Copyright Infringement