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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…
The U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) recently applied Illinois law to determine whether a collective bargaining agreement (CBA) conferred a property interest protected by the Fourteenth Amendment’s Due Process Clause. The court concluded that, when considered as a whole, the CBA did confer such a property interest. The case serves as an important reminder to employers that when negotiating or drafting a CBA, it’s critical to understand how the agreement will be read and considered as a whole to ensure it doesn’t confer more rights than intended. Facts Joshua Cheli worked for…
On February 25, 2021, Governor Evers signed 2021 Wisconsin Act 4, which became effective as of February 27, 2021.  In general, the new law takes a step toward modernizing Wisconsin’s unemployment system after more than a decade with no upgrades. In addition, the legislature took the opportunity to attach language as it relates to immunity for civil liability for COVID-19 exposure. The immunity-related language reflects compromises that were struck between the Evers administration and the legislature. Included in the new legislation is limited liability protection for businesses, schools, and churches when someone has been exposed to and contracted COVID-19. Now,…
The Wisconsin Home Improvement Practices Act, Wis. Admin. Code § ATCP 110, (“HIPA”) is a consumer protection regulation imposing contract and business practice requirements on contractors performing home improvement projects[1].  It also provides that attorneys may recover double damages and attorney’s fees if successful in pursuing a claim against a contractor who fails to comply with the Act[2].  Although the legislature intended HIPA to shield consumers from unscrupulous contractors, attorneys may turn it into a sword by aggressively pursuing contractors for merely technical violations in the hope of obtaining double damages and attorney’s fees.   But whether…
As everyone is likely aware, marijuana has been legalized in several states across the country. In some states, it is legalized for medicinal purposes, while other states have legalized recreational use.  Recently, our neighbor to the south, Illinois, has legalized marijuana for both medicinal and recreational use.  Even with a new dispensary a few miles from the Wisconsin border, that does not mean it is legal for Wisconsin residents. Marijuana legalization in Illinois does not mean it can be lawfully possessed in Wisconsin.  It is still a crime to possess marijuana, paraphernalia (pipes, grinders, torches, etc.) and edibles in Wisconsin. …
On February 16, 2021, Governor Tony Evers unveiled his 2021-23 biennial budget proposal to a joint session of the Legislature. The Governor’s budget proposal recommended $91 billion in operating expenditures over the two-year budget cycle, which represents a 9.7 percent ($4.043 billion) increase over the prior two-year budget. The majority of the increased expenditures proposed by the Governor are devoted to K-12 school aids, which he stated will result in the fulfillment of the state’s promise to provide two-thirds funding for public school expenditures, which began under Governor Tommy Thompson. Other notable provisions in the Governor’s proposed budget include increased…
The COVID-19 crisis has brought major changes to the U.S. workforce. Many employers have transitioned their workforces to remote work. Now, employees can work from anywhere with an Internet connection. Many employees have taken advantage of the flexibility by investing in home office spaces, moving to different states, and even traveling the country. What most employees and employers haven’t considered, however, are the unique and complex income tax issues that have arisen with a remote workforce. Understanding State Income Tax Scheme Generally, an employee’s home state can tax her income regardless of where the money is earned. She also can…
On January 6, 2021, the U.S. Department of Labor (DOL) announced a long-awaited Final Rule regarding independent contractor status under the Fair Labor Standards Act (FLSA). The DOL intended the new rule to take effect on May 7, 2021 and clarify the test for determining independent contractor status. On February 5, 2021, the DOL announced that implementation of the final rule is delayed, pending further review by the Wage and Hour Division. The DOL has also withdrawn two opinion letters, FLSA_2019-6 (addressing whether a service provider for a virtual marketplace company is an employee of the company or an independent…