Labor & Employment Law Blog | Labor & Employment Law Section

This blog offers the latest news, practical advice, and valuable resources for labor and employment practitioners, and discusses management, arbitration, labor, and other workplace legal issues. Published by the State Bar of Wisconsin's Labor & Employment Law Section.

The section includes attorneys who practice in the arena of traditional labor and employment law. It offers monthly CLE presentations on current issues in labor and employment law, has an elist, plans social and networking events, and sponsors various CLE programs.

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On Sept. 29, 2021, National Labor Relations Board (NLRB) General Counsel Jennifer A. Abruzzo (the GC) issued GC Memorandum 21-08 – Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act.

Pursuant to the GC’s prosecutorial discretion regarding the National Labor Relations Act (the Act), Abruzzo set forth her position that certain “Players at Academic Institutions” on scholarship – commonly known as “student-athletes” – are covered employees under the Act, with the right to
Continue Reading College Athletes and the Right to Organize

COVID-19 has taken a great toll on employees and workplaces. Of primary concern for employers is the safety and health of employees. Up until June 2021, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) had not provided formal guidance on dealing with COVID-19 in the workplace.In June 2021, OSHA published
Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, for
all employers outside of the health care industry. Since then,
Continue Reading Six Recommendations: OSHA’s Updated COVID-19 Guidance

Since the onset of the pandemic, many employees have been forced to cease working due to COVID-19-related disabilities.

While most people who become infected with COVID-19 fully recover in just a few weeks, some experience symptoms that persist well beyond this timeframe. This chronic condition has come to be known as “long COVID,” and is most commonly associated with symptoms of fatigue, brain fog, difficulty breathing, and headaches.

While it’s unclear exactly how many people experience long COVID, a
Continue Reading COVID-19 Related Disability Claims: Insights from Case Law

In order to encourage employees to be vaccinated, some of the largest employers in the country are offering cash bonuses for employees who get COVID-19 vaccines. One implication of these cash bonuses is that they may need to be included in the employee’s regular rate, thereby potentially increasing the employees’ liability for overtime pay.
Calculating Overtime Pay
Under 29 U.S.C. §207(a), overtime pay must be computed as time and a half the employee’s regular rate. The regular rate is
Continue Reading Must COVID-19 Vaccination Bonuses be Included in an Employee’s Regular Rate?

As we progress into 2021 and further away from 2020, many are beginning to feel as though they can finally see the light at the end of the “COVID-19 tunnel.”

Vaccine distribution has increased. Offices and schools are reopening, people are returning to work, and many are experiencing something approaching normalcy in their lives again.

However, there are some individuals who continue to struggle with long-lasting health effects: the COVID-19 long-haulers.

COVID-19 seemed to affect everyone who became infected
Continue Reading Employment Challenges Faced by COVID-19 Long-haulers

As bars and restaurants start to reopen their businesses to outside guests and rehire staff, these employers need to pay particular attention to the current status of the Department of Labor’s (DOL) tipped employee regulations. These regulations impact provisions of the FLSA addressing the tip credit or tip pooling arrangements, who may keep employee tips, and civil monetary penalties for violations.

This article provides a brief refresher on the FLSA’s tipped employee provisions, the DOL’s December 2020 Tipped Employee
Continue Reading Red Light, Green Light: The Continuing Saga of the Tipped Employee Final Rule

Lawyers are needed now for the unemployment crisis.

As of Jan. 31, 2021, there were nearly 16,000 cases waiting for a hearing in Wisconsin. With new administrative law judges at work starting at the end of March, several hundred hearings are now occurring each week.

Still, given the size of the hearing backlog, many claimants have been waiting months – in some cases now a year – for unemployment benefits. More than a few who have received benefits are
Continue Reading Lawyers: We Need You Now for Wisconsin’s Unemployment Claims Crisis

A basic and important question has lingered in the Seventh Circuit since 2008: What is the proper standard of causation for proving disparate treatment under the ADA, as amended?

The Two Standards

There are two likely standards of causation which the court would apply: “but-for,” and “motivating factor.”

“But-for” causation requires plaintiffs to show that the adverse employment action would not have occurred if they were not disabled and everything else remained the same.1

By contrast, a “motivating
Continue Reading Seventh Circuit Acknowledges Unresolved Causation Standard under ADA

The Consolidated Appropriations Act 2021 did not extend the Families First Coronavirus Response Act (FFCRA) – but there are several considerations employers should keep in mind regarding leave and the FFCRA.


The Families First Coronavirus Response Act (H.R. 6201) was signed into law March 18, 2020, and generally became effective April 2, 2020.

The FFCRA provided expanded family leave (provided under an amendment to the federal Family and Medical Leave law) and paid sick leave.

Under the FFCRA,
Continue Reading The Families First Coronavirus Response Act in 2021: Considerations for Employers

Since COVID-19 vaccinations have received emergency use approval (EUA) by the Food and Drug Administration (FDA) and are being distributed in the United States, employers should evaluate whether they will implement mandatory vaccine policies in their workplaces and the legal and regulatory implications of doing so.

Employers should look at the risks associated with a mandatory policy versus those associated with a voluntary policy, and how these competing risks may affect their business practices.

If employers decide to make
Continue Reading COVID-19 Vaccine Policy Considerations for Wisconsin Employers

Associational disability discrimination happens when a covered employer discriminates against a nondisabled person for having a relationship with a person who has a disability.

Since 2004, the Seventh Circuit has recognized three forms of associational disability discrimination. But earlier this year, the Seventh Circuit held that it is open to new theories of associational disability discrimination.

Scope of Associational Discrimination & Applicable Law

Most are aware that the Americans with Disabilities Act (ADA) protects individuals who have disabilities in
Continue Reading Seventh Circuit Expands Associational Disability Discrimination During Pandemic

In a landmark decision that is a major victory for the LGBTQ community, the U.S. Supreme Court ruled that federal law prohibits employers from discriminating against gay, lesbian, and transgender employees in workplaces.
“An employer who fires an individual merely for being gay or transgender violates Title VII because homosexuality and transgender status are inextricably bound up with sex.”1
On June 15, 2020, in a 6-3 decision in Bostock v. Clayton County, the Court ruled that the prohibition
Continue Reading Defining ‘Sex’ in Title VII: The Bostock Decision and LGBTQ Rights

The scale continues to tip.

On Sept. 22, 2020, the U.S. Department of Labor (DOL) issued proposed regulations aimed at “bringing clarity and consistency” in determining who is an independent contractor under the Fair Labor Standards Act (FLSA).

Labor Secretary Eugene Scalia said in the news release that the purpose is to “make it easier to identify employees covered [by the FLSA], while also respecting the decision other workers make to pursue the freedom and entrepreneurialism associated with being
Continue Reading Who Is an Independent Contractor? Department of Labor Proposes Clarity

As the coronavirus continues to affect businesses throughout the U.S., Occupational Safety and Health Administration (OSHA) regulations have become a hot topic amongst employers.
As temporary enforcements are issued from the Occupational Health and Safety Administration, it is important that employers understand which citations could be issued from these changes.
Changes to OSHA Respiratory Protection Program
One of the areas of temporary enforcement that Employers should be aware of are the changes to the Respiratory Protection Program under OSHA.
Continue Reading What Employers Should Know About OSHA PPE Guidance during COVID-19

Note: This article is reproduced here with permission from Hawks Quindel, s.c.Wisconsin workers are generally entitled to worker’s compensation benefits when they are injured at work, including payment of their bills for medical treatment.

Decisions of both the Wisconsin Court of Appeals and the Wisconsin Labor and Industry Review Commission confirm that undocumented workers are entitled to the same benefits as all other injured employees.
Wisconsin Worker’s Comp is Blind to Immigration Status
Wisconsin doesn’t exclude workers from
Continue Reading Undocumented Workers Are Entitled to Wisconsin Worker’s Compensation Benefits

Fortunately, legal services have been deemed “essential” under various quarantine orders in place since March, which has allowed law firms to continue operations on site or virtually. Although some litigators and criminal law attorneys have faced delays as cases have stalled in the courts, other attorneys have provided legal services without interruption.
Whether working remotely or in their offices, all attorneys are navigating new ways of meeting and communicating with their colleagues and clients.
As we prepare to reopen
Continue Reading Reopening Your Firm Carefully and Compassionately in the COVID-19 Era