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In interviews with prospective employees, can an employer ask about their COVID-19 vaccination status?
The short answer is a qualified yes. The Americans with Disabilities Act (ADA) prohibits you from asking applicants questions likely to reveal the existence of a disability before making a job offer. The Equal Employment Opportunity Commission (EEOC) has clarified that asking employees whether they have received the COVID-19 vaccine isn’t a disability-related inquiry under the ADA.
Just like with most areas of the law,
Continue Reading Asking Prospective Employees About COVID-19 Vaccination Status

Workers’ compensation serves as the “exclusive remedy” for employees claiming benefits arising out of a work injury (if there’s no other nonemployee third party responsible for the injury). The Wisconsin Supreme Court recently explained an employee’s secondary injury, namely a self-inflicted gunshot wound, following a work injury where he was gored by a bull, was also subject to the Act’s exclusive remedy provision. Read on for the interesting facts of the case as well as some guidance on the
Continue Reading Wisconsin Supreme Court Affirms Workers’ Comp Exclusive Remedy Provision

Non-compete agreements are common between employers and employees (“employment covenants”), and between buyers and sellers of businesses (“transaction covenants”). Section 103.465 of the Wisconsin Statutes governs employment covenants and requires employers only require restrictions that are reasonably necessary for the protection of the employer. To quote from the statute, “Any covenant . . . , imposing an unreasonable restraint is illegal, void and unenforceable even as to any part of the covenant or performance that would be a reasonable
Continue Reading Covenants Not to Compete in Employment Versus Business Transactions

A failure-to-hire case recently decided by the U.S. 7th Circuit Court of Appeals (which covers Wisconsin employers) demonstrates the importance of the pretext analysis in defeating discrimination and retaliation claims. In such cases, the 7th Circuit requires employees to prove pretext (i.e., a cover-up for discriminatory or retaliatory motives). The court focused its entire discussion on the pretext issue, finding it was determinative of the outcome of the employee’s timely discrimination and retaliation claims.
Mildred Chatman is a
Continue Reading Pretext Analysis Key to Beating Discriminatory Hiring Claims

It was only a year ago that work-from-home became the norm in most of our households. Overnight, employers and employees were forced to adjust the way they live and work, while following COVID-19 guidelines. Just when it seemed routines were established, a new school year began. And it left employees with more questions than answers: How long will the uncertainty last? When will I return to work? Will my children return to school? How will I set-up my Zoom
Continue Reading Keep Conversation Going with Employees as They Return to In-Person Work

An employee handbook is an important tool for communicating an employer’s policies, procedures, and expectations. They are particularly good for assisting HR staff with onboarding new employees. Creating a well-drafted employee handbook can be challenging, particularly because it’s easy to confuse it with employee contracts. Here are some things to remember when drafting and editing an employee handbook.
Handbook essentials
1. Employee handbooks aren’t contracts. Wisconsin, like most states, is an employment-at-will state. That means unless the employer and employee
Continue Reading 5 Employee Handbook Pointers for WI Employers

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
Continue Reading NLRB Finds Solicitation of Mail Ballots Can Be Objectionable Conduct

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.
Amit Sinha was an associate
Continue Reading University Professor’s Age Bias Claim Rejected Under ‘Cat’s Paw’ Theory of Liability

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
Continue Reading So, Your Employee Wants to Keep Teleworking After the Pandemic

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
Continue Reading Let’s Make a Deal

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
Continue Reading Dane County to Lift All Public Health Orders on June 2, 2021

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).
Continue Reading Airline Supervisors Exempt from Federal Arbitration Act

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
Continue Reading Motorcycle Safety Awareness Month

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
Continue Reading Seventh Circuit Hands Win to Employers in Religious Discrimination Claim

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
Continue Reading Dane County and Madison Public Health Issues Emergency Order #16, Continues to Ease Restrictions

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
Continue Reading 7th Circuit Holds Winery Violated NLRA Over ‘Cellar Lives Matter’ Slogan