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.

Members of the State Bar of Wisconsin may join the section by visiting https://www.wisbar.org/formembers/groups/pages/join-a-group.aspx (login required).

Section website: https://www.wisbar.org/forMembers/Groups/Sections/LaborandEmploymentLawSection/Pages/Home.aspx

Unemployment rates are down – way down. In April 2020, Wisconsin’s unemployment rate was 14.1%1 and the U.S. unemployment rate was 14.7%.2 In May 2022, Wisconsin’s rate was 2.8%, a record low, while the U.S. unemployment rate was 3.6%.3

The Department of Workforce Development’s processing of unemployment claims today shows vast improvement as well. A year ago, it was not uncommon for the average amount of days between an appeal of an adjudicator’s determination to
Continue Reading Unemployment Update: The Pandemic and Beyond

Many individuals are familiar with online video games, such as FIFA, Minecraft, Fortnite, and Last of Us that permit players to play and communicate with others online while seated at their Xbox or PlayStation consoles.

Augmented Realty (AR) games, such as Pokémon-GO, superimpose a digital setting into the players’ own real environment, thereby incorporating virtual components into the real world and increasing the level of physical activity.

With the advent of virtual reality (VR) games, increasing numbers of players
Continue Reading ‘That’s So Meta:’ Workplace Harassment Issues in a Virtual World

Regardless of whether one identifies as pro-labor, pro-management, or somewhere in between, most would agree that the National Labor Relations Board is a political animal. Board doctrine often shifts to reflect the philosophy and goals of the political party in power at the time. Critics of the board accuse it of “flip-flopping.” Others more graciously refer to this phenomenon as “policy oscillation.” Policy oscillation is in full swing at the board. A Change of Leadership, A Change of Focus
Continue Reading ‘Policy Oscillation’ in Full Swing at the National Labor Relations Board

Many requests for exemptions from COVID-19-related work rules involve religious liberty or medical disability, but what if an employee objects simply on political grounds?

Madison’s Equal Opportunities Ordinance,1 which protects 24 classes from discrimination, recognizes that employees should not be punished because of “political beliefs” that do not impact job performance. While employers should try to accommodate employees’ “political beliefs” where possible, they need not tolerate activity that interferes with business operations. Madison employees should also be aware
Continue Reading ‘Political Beliefs’ and Employer Mask Mandates

The Occupational Safety and Health Administration’s (OSHA) vaccine and testing emergency temporary standard (ETS) has been a whirlwind since the beginning of November, with stays being put in place and stays being dissolved by different courts.

It is unknown as to whether the OSHA vaccine and testing ETS will survive, but if the Supreme Court rules in its favor, employers will have to be ready to implement the OSHA ETS requirements.

One of those requirements is verification of employee
Continue Reading Determining an Employee’s Vaccine Status

On Nov. 9, 2021, the Wisconsin Department of Workforce Development (DWD), tasked with enforcing Wis. Stat. section 103.37, clarified that the statute does not require employers to pay the cost of COVID-19 testing where the testing is offered as an alternative to vaccination and where the federal government has issued a soft mandate that requires either testing or vaccination of employees.Section 103.37(2m) provides that:No employer may require any employee or applicant for employment to pay the cost of a
Continue Reading Wisconsin Law Does Not Require Employers to Pay for COVID-19 Testing

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.

Background

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