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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Latest from Labor & Employment Law Blog | Labor & Employment Law Section

In December 2023, I wrote about the EEOC’s proposed harassment guidance in this blog. At that time, the public comment period had concluded but final guidance had not yet been released.

On April 24, 2024 – nearly 25 years after the EEOC last published guidance on the topic, the Equal Employment Opportunity Commission (EEOC) released final guidance document on unlawful workplace harassment. It released a summary of key provisions, FAQs for employees, and a fact sheet for
Continue Reading EEOC Issues Final Guidance on Workplace Harassment

Wis. Stat. section 102.35(3) provides a penalty of up to one year’s wages for employers who fail to rehire injured workers where suitable work is available within their restrictions. In addition to standard claims for permanent damage to the body and compensation for time off work while healing, Wisconsin workers’ compensation law allows for several additional, less common claims, depending on the employee’s situation. One of those claims is the unreasonable refusal to rehire (URR). To establish liability for
Continue Reading Unreasonable Refusal to Rehire: When Must Employers Rehire Injured Employees?

Many commentators and practitioners have expressed surprise over the National Labor Relations Board’s (NLRB) expansion of the scope of Section 7 rights. The Board’s recent decision in Home Depot1 is the latest lightening rod for this concern.

On its face, the concern is understandable.
The Decision in Home Depot
In Home Depot, the Board found that an employee’s display on their work uniform of “BLM,” an acronym for Black Lives Matter, constituted protected concerted activity under Section 7
Continue Reading ‘Home Depot’ and the NRLB: Section 7 on Steroids

On Feb. 5, 2024, the National Labor Relations Board’s (NLRB) Region 1 director in Trustees of Dartmouth College,1 found that members of the college’s men’s basketball team qualify as “employees” under Section 2(3) of the National Labor Relations Act (NLRA).
The Board in 2015 considered another case regarding collegiate-level student athletes’ employment status: Northwestern University.2 In this case, the Board declined to assert jurisdiction and did not explicitly rule whether student athletes were “employees” under the
Continue Reading ‘Seismic’: NLRB Rules Dartmouth Men’s Basketball Players are Employees

Employees who report or oppose actual or suspected legal or regulatory violations enjoy retaliation protections that are
spread across more than 50 federal statutes. Depending on the nature of the violation and other factors, these whistleblower protections vary widely in terms of their filing deadlines, available remedies, and method of enforcement. Potential venues for bringing a whistleblower claim include:

  • state and federal courts;
  • the Equal Employment Opportunity Commission (EEOC);
  • the Merit Systems Protection Board (MSPB); and
  • federal offices

Continue Reading 3 Tips for Filing a Claim with OSHA’s Whistleblower Protection Program

Workplace harassment continues to loom large in the employment law space.

In FY2018 through FY2022, Equal Employment Opportunity Commission (EEOC) statistics show that more than one-third of charges filed with the agency alleged unlawful harassment.

The EEOC’s latest guidance document regarding unlawful harassment was published in 1999.1Since that time, the practical and legal landscape has evolved dramatically: the #MeToo Movement brought awareness to sexual harassment and sexual violence, the Supreme Court’s decision in Bostock2 clarified that
Continue Reading EEOC’s Proposed New Guidance on Harassment in the Workplace

There is understandable confusion among employees and their employers about an employee’s access to disability insurance coverage after termination of the employee/employer relationship.

Disability insurance coverage is an employee benefit, and some assume that when employment ends, employee benefits – including disability insurance – end. However, that is not always the case.

In fact, the termination of employment generally should not affect ongoing short-term disability (STD) or long-term disability (LTD) benefits or even prevent employees from applying for benefits
Continue Reading Disability Benefits: When Terminated Employees Are Still Eligible

In its decision in Cemex Construction Materials1 (now on appeal), the National Labor Relations Board (NLRB) abandoned 50 years of precedent and made it decidedly easier for unions to establish majority support without conducting a Board-supervised secret-ballot election. The Board’s new approach, if upheld, likely will result in fewer secret-ballot elections, thus depriving employees of the opportunity to express their true beliefs regarding union representation in the sanctity of the voting booth. The Concept of Majority Support An employer
Continue Reading Does the NLRB Really Favor Secret-ballot Elections?

At the onset of the COVID-19 pandemic in 2020, many employees around Wisconsin transitioned from a traditional office setting to working remotely from home. Since then, new questions have been raised by workers regarding which at-home injuries might be covered under the Worker’s Compensation Act.

The short answer is that most at-home injuries suffered in the course of an employee’s job duties are covered under the Worker’s Compensation Act. However, workers’ compensation insurers can be quick to deny at-home
Continue Reading Worker’s Compensation in the Work-from-Home Era

This article was originally published in
Boardman Clark’s labor and employment blog, “Head’s Up,” and is published here with permission. The Wisconsin Fair Employment Act (WFEA) prohibits covered employers from discriminating against employees based on disability. Failing or refusing to reasonably accommodate an individual with a known disability is a form of disability discrimination. Disabilities are not always obvious, and it can be tricky to recognize when employees are making requests for accommodations. Employees are not required to use
Continue Reading Court Clarifies When Employer Accommodation Obligation Occurs

For nearly 60 years, Title VII of the Civil Rights Act of 1964 has firmly controlled and governed claims of workplace discrimination for millions of Americans. The formula is quite simple:

  • an employee has an adverse action taken against them;
  • because of their race, sex, religion, color, or national origin (protected category or class);1
  • resulting in damages.
  • The easiest case to make is one that is straightforward, when a single individual has a single protected characteristic that the
    Continue Reading Workplace Discrimination: When Two or More Protected Classes are Involved

    As of July 31, 2023, the COVID-19 temporary flexibilities for Form I-9, Employment Eligibility Verification, no longer apply. U. S. Immigration and Customs Enforcement (ICE) announced that employers must complete in-person physical document inspections for employees whose documents were inspected remotely during the temporary flexibilities by Aug. 30, 2023. Employers who previously utilized the flexibility provisions to conduct remote I-9 document review must now plan to verify, in person, the identity and employment eligibility documentation for those employees.


    Continue Reading Employers: Form I-9 COVID Flexibilities Have Ended

    This article was originally published in
    Husch Blackwell’s Labor Relations Law Insider blog and is published here with permission. On May 1, 2023, the National Labor Relations Board (“NLRB”) issued its decision in
    Lion Elastomers and United Steelworkers, making it more difficult for employers to discipline employees for outbursts and similar misconduct while employees are engaged in protected concerted activity under Section 7 of the National Labor Relations Act (the “Act”). The NLRB in Lion Elastomers overruled the
    Continue Reading NLRB Provides Employees Extra Leeway to Use Offensive Language

    This article was originally published in Husch Blackwell’s News and Insights blog and is published here with permission.

    Many companies have invested in and prioritized diversity, equity, inclusion, and accessibility (DEIA) initiatives over the past several years. And for good reason: DEIA initiatives have been proven to improve employee recruitment, retention, and morale, and to help mitigate risks associated with potential disparate treatment and discrimination claims by employees.
    Melissa Caulum Williams, U.W. 2007, is senior counsel with Husch
    Continue Reading Best Practices for Navigating Legal & Political Guardrails Impacting Employer DEIA Efforts

    It is no secret that Jennifer Abruzzo, general counsel for the National Labor Relations Board (NLRB), has embarked on an aggressive, pro-labor agenda.1

    Among other things, she is looking for ways to streamline the organizing process for unions. With this in mind, G.C. Abruzzo has expressed her desire for the NLRB to revive what is known as the “Joy Silk doctrine.”2
    Context for the Joy Silk Doctrine
    At the outset, it is important to keep in mind
    Continue Reading The Revival of Joy Silk: How Union Organizing Could Get Easier

    On Jan. 5, 2023, the Federal Trade Commission (FTC) released a
    Notice of Proposed Rulemaking (NPRM) to prohibit employers from entering or attempting to enter, maintaining, and/or representing to a worker that the worker is subject to, a non-compete agreement.1 The proposed rule is based on the FTC’s preliminary finding that non-compete agreements constitute an unfair method of competition and therefore violate section five of the Federal Trade Commission Act (FTCA). Section 5 gives the FTC broad authority
    Continue Reading FTC’S Proposed Rule Seeks to Eliminate Non-Compete Agreements Nationwide