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

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By: Labor & Employment Law Section | State Bar of Wisconsin

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

As part of the Equal Employment Opportunity Commission’s (EEOC) new National Enforcement Plan (NEP), the commission stated its intent to “eliminate the use of disparate impact liability theories in investigations,” and vowed “not [to] commence, develop, or continue to pursue litigation advancing disparate impact claims.”

The NEP, voted into effect on June 4, 2026, replaces the EEOC’s Biden-era Strategic Enforcement Plan and is intended to comply with the Trump Administration’s Executive Order 14281, issued in April 2026, directing…
Continue Reading Profound Changes Afoot to EEOC’s Guidelines and Enforcement in Disparate Impact Cases

When a workplace injury occurs, the legal response often begins with worker’s compensation. But for both employers and employees, that is rarely the end of the story. As medical restrictions continue or evolve, the same set of facts can implicate worker’s compensation law, the ADA and Wisconsin Fair Employment Act (WFEA), and federal and state leave statutes at the same time. Understanding this overlap matters because the legal risks and the practical expectations look very different depending on which…
Continue Reading Navigating Workplace Injury Obligations for Employers and Employees in Wisconsin

The use of artificial intelligence in candidate screening and hiring processes has been a “hot” employment issue for the past several years. This is driven, in part, by the rapid and widespread adoption of these tools by employers: in March 2025, a Forbes article declared that “[t]he world is on the verge of a seismic shift in how talent is hired, one that will redefine the fabric of work itself.” That same article included Gallup survey statistics showing that,…
Continue Reading Legal Challenges to AI in Hiring: FCRA Has Entered the Chat

The beginning of a new year often signifies an opportunity to reflect upon the past, to set goals for the future, and to begin with a fresh start. Each January, many of us, inspired by the start of the new year, resolve to become better versions of ourselves, try something new, or achieve myriad personal aspirations. But new year’s resolutions need not be limited to personal growth. While many of us are hoping to hit the gym more frequently

…
Continue Reading Get Your Employee Handbook into Shape

Work injuries rarely stay neatly contained within one legal bucket. In Wisconsin, a single incident can simultaneously trigger worker’s compensation rights, ADA accommodation obligations, FMLA protections, and short and long-term disability (STD/LTD) issues. For employment attorneys on both sides, understanding how these systems overlap is essential for preventing procedural landmines, avoiding retaliation claims, and guiding clients toward legally sound decisions that also make practical business sense. This article provides an integrated overview of how these regimes interact, the timing

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Continue Reading Work Injuries in Wisconsin: Navigating Comp, ADA, FMLA, and Beyond

Among the cacophony of campaign promises floated by then-candidate Trump prior to the 2024 presidential election, one drum beat steadily: A vow to implement a no-tax-on-tips and no-tax-on-overtime law.

Martin Kuhn headshot

Martin C. Kuhn, Marquette 2004, Marquette 2004, is the founder of Kuhn Law, in Milwaukee, where he has focused on labor and employment for 19 years.

On July 4, 2025, oversized sharpie in hand, President Trump signed into law the “One Big Beautiful Bill Act” (OBBB),[1] endeavoring…
Continue Reading One Big Beautiful Bill’s Impact on Tips and Overtime

Title VII of the Civil Rights Act and other U.S. anti-discrimination laws have traditionally relied on two key theories of liability – disparate impact and disparate treatment. An April 23, 2025 Executive Order issued by President Trump effectively eliminates the disparate impact theory in federal employment cases. Disparate Impact vs. Disparate Treatment Theories Disparate impact discrimination occurs when a facially neutral workplace policy or practice disproportionately harms a protected group.

Kate O’Malley headshot Katherine M. O’Malley, Marquette 2014, is senior manager,

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Continue Reading Executive Order Effectively Eliminates Disparate Impact Liability in Federal Employment Discrimination Cases

This spring, labor and employment attorneys and law students have been busy teaching employee rights and obligations to students in Madison.

Naomi Swain headshot
Naomi R. Swain, U.W. 2021, is an associate attorney at
Hawks Quindel’s, Madison office. Her practice covers worker’s compensation, disability benefits, and family law.

Under attorney supervision, U.W. Law School students in the Labor and Employment Student Association (LESA) spoke with high school students about basic employee rights. Similarly, labor and employment attorneys present to Certified…
Continue Reading Attorneys and Law Students Present on Employment Rights

In April 2024, the Supreme Court decided Muldrow v. City of St. Louis,1 and in so doing, reduced the magnitude of harm some courts (including courts in the Seventh Circuit) previously required to establish an “adverse action” in Title VII discrimination claims. Muldrow resolved “a Circuit split over whether an employee challenging a job transfer under Title VII must meet a heightened threshold of harm – be it dubbed significant, serious, or something similar.”2

Martin Kuhn headshot Martin C.

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Continue Reading Title VII Damage Cases in the Seventh Circuit Since Muldrow

Consider the following hypothetical: a veteran employee of a Wisconsin corporation with a spotless disciplinary record shows up to work, where he is required to take a random drug test. The test is pursuant to the corporation’s long-established drug use policy, which mandates immediate termination for employees who test positive for controlled substances without a valid prescription. The policy is applied evenly to all employees, and the tests are administered without bias or discrimination.

Although the employee states that…
Continue Reading CBD, THC, and the Wisconsin Fair Employment Act

In November 2023, seven unions filed suit in Dane County Circuit Court returning to do battle against a familiar foe: 2011 Wisconsin Act 10. The suit seeks to have Act 10 blocked, arguing that it violates the Wisconsin Constitution’s equal protection clause. On July 3, 2024, the court rejected a motion to dismiss the case and “declare[d] those provisions of [Act 10] relating to collective bargaining modifications unconstitutional and void.” The battle over Act 10 is, perhaps unsurprisingly, far…
Continue Reading New Challenge to Act 10 Overcomes Dismissal and Appears Headed for State Supreme Court

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).
Background
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

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