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

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 factor” analysis allows plaintiffs to prove discrimination if an individual’s disability was one reason among other legitimate reasons for the adverse…
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, covered employers (those with less than 500 employees) were required to provide leave to their employees for one six qualifying reasons:…
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 the vaccine mandatory, they will need to understand employees’ refusal rights, how refusal impacts a mandatory policy, and whether termination of…
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 covered workplaces.1 In addition, the ADA also prohibits “associational discrimination,” discrimination against able-bodied individuals.2 The ADA states that a…
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 on discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964 (Title VII) applies to…
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 an independent contractor.” An Ever-changing Worker Classification Worker classification has been hotly contested in the recent years. The Obama administration issued…
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. Employers should have an understanding of the requirements of masks and whether they are needed due to COVID-19 or because they…
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 worker’s compensation based on immigration status. The law is written so almost all employers in Wisconsin are required to have worker’s…
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 or resume full operations amid COVID-19, there will be new challenges and questions. We must put measures in place to be…
As the coronavirus pandemic continues to run its course, Wisconsin employers should be prepared for an increase in claims arising from job losses caused by pandemic shutdowns and related employment decisions. While much attention is rightfully given to federal employment laws, it is important to note that state laws can – and often do – vary considerably from federal laws. Importantly, when two or more laws apply to an employee, the employee generally receives the benefit of the most favorable provision. That said, understanding nuances between state and federal law can reduce legal liability. This article highlights what employers should…
The recent worldwide coronavirus outbreak thus far has had a fairly limited impact in the U.S. However, health officials believe that it’s not a matter of if the U.S. has an outbreak of the virus, but when. The Centers for Disease Control and Prevention (CDC) stated that the “[d]isruption to everyday life may be severe,” which could include schools being closed, mass public gatherings being suspended, and businesses having their employees work remotely. Additionally, we’re still well within the grasp of cold and flu season, so employers are going to have to deal with the impact of employees needing leave…
In May 2018, the United States Supreme Court ruled that Epic Systems in Verona, Wisconsin, could force its employees to sign agreements requiring them to pursue claims for unpaid overtime through private arbitration.1 Since the Supreme Court’s decision, several current and former Epic employees filed private arbitrations for back overtime pay. The First Arbitration between Epic and Technical Writer In the first of the private disputes to be decided, an arbitrator ruled on Dec. 27, 2019, that an Epic technical writer did not qualify as exempt from overtime, and was entitled to back overtime pay pursuant to the federal…
In representing low wage workers, we have noticed in the last few years the overuse of noncompete agreements in Wisconsin and other states. By overuse, we mean the use in contexts that are not permissible under the law in Wisconsin and many other states and, in some cases, contrary to federal law. The Problem: Noncompete Agreements for Low-wage Workers Traditionally, noncompete agreements are applied regularly to sales personnel and technical experts to protect their employers from the misappropriation of customer goodwill and trade secrets should employees leave to join a competitor. com mgr previant Marianne Goldstein Robbins, Northeastern 1977, is…
Nov, 20, 2019 — We have finally received a decision about obesity from the Seventh Circuit Court of Appeals, which governs employers in the state of Wisconsin. In the decision in Richardson v. Chicago Transit Authority,1 the Federal Court of Appeals held that extreme obesity, by itself and alone, does not constitute a disability under the Americans with Disabilities Act. We do not have a clear decision from the Equal Rights Division (ERD) on this topic, so hopefully the ERD will follow the same reasoning as the Court of Appeals.2 This is important, because Wisconsin is high on…
Recently, in Johnson Controls, Inc.1, the National Labor Relations Board (NLRB) announced a new framework for a little-used method for employers to make a lawful anticipatory withdrawal recognition of a union who has been representing its workforce. Specifically, the decision forces a union seeking to demonstrate that it has reacquired majority status to do so in a secret ballot election conducted by the board, rather than in an unfair labor practice proceeding. For employers and those employees seeking to no longer be represented by a union, this provides clarity to a historically muddy process. What is a Lawful…
In my experience of 20-plus years as an employment attorney-advocate, three-plus years as an employment attorney-mediator, and in teaching Mediation Advocacy and Negotiation at Marquette University Law School, I’ve put together my top favorite tips to help lawyers prepare their clients for mediation. Here are my top 10 tips to maximize results for your clients during their mediation session: 1) Decide the Best Time to Mediate. Consider mediation when you have enough information to adequately advise your client and, if possible, before attorneys’ fees are a significant impediment to settlement. 2) Strategically Choose Your Mediator. In order to be effective,…