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Continuing a trend of adopting a more common sense approach to balancing the rights of employees to engage in protected concerted activity accorded under the National Labor Relations Act (“NLRA”) with the right of an employer to maintain order in the workplace, in General Motors, LLC, 369 NLRB No. 127 (July 21, 2020), the National Labor Relations Board (“NLRB”) overruled a series of earlier decisions which the Board concluded had tipped the scale too far in the direction of protecting abusive behaviors on the work floor, in social media, and on the picket line. In another recent decision, Nicholson Terminal…
On August 8, 2020, President Trump issued a Coronavirus relief executive order (“EO”) intending to help alleviate the hardships experienced by American workers as a result of the pandemic. The EO focuses on four key areas of relief: (1) a deferral of payroll tax obligations for certain workers, (2) an extension of supplemental unemployment benefits, (3) an extension of relief for student loan borrowers, and (4) additional eviction relief to renters who are unable to pay rent due to economic hardship due to COVID-19. This Legal Update summarizes the EO as it relates to employment concerns. Deferring Payroll Tax ObligationsIn…
In the immediate aftermath of the coronavirus pandemic, Congress passed the Families First Coronavirus Response Act (“FFCRA”) in order to provide relief to American workers. The FFCRA generally requires employers to offer two (2) weeks of paid sick leave and emergency family and medical leave to employees who are unable to work or telework because of specific qualifying reasons related to the pandemic. The leave provisions of the FFCRA are set to expire on December 31, 2020. Shortly after the FFCRA was passed, the United States Department of Labor (“DOL”) promulgated its Final Rule interpreting and implementing the FFCRA. In…
On July 30, 2020, Governor Tony Evers issued Emergency Order #1 (the “Order”) requiring every individual in Wisconsin, aged 5 and older, to wear “Face Coverings” except in limited circumstances. This mandate, effective August 1, 2020, and continuing through September 30, 2020, requires Face Coverings be worn in Wisconsin when an individual is both: Indoors or in an Enclosed Space (excluding private residences), and Another person or persons is present (who are not members of individual’s household or living unit) in the same room or Enclosed Space. The Order applies to public and private places of employment. There are a…
Last week, the Department of Labor (“DOL”) issued updated Family and Medical Leave forms and notices for employers to use in administering federal Family and Medical Leave Act (“FMLA”) obligations. The documents are not mandatory; instead they are suggested forms for employers to use in their FMLA compliance process. At the outset, it should be noted that these new forms and related DOL guidance do not reflect employers’ State law responsibilities. Because of the need for employers to coordinate the leave eligibility and availability differences between the Wisconsin and Federal FMLA laws, we recommend that forms used by Wisconsin employers…
MILWAUKEE, WI – von Briesen & Roper, s.c., today announced that Todd W. Gray has joined the firm as a Senior Consultant. Gray had a distinguished career with several Wisconsin school districts, and most recently was the Superintendent of the Waukesha School District. As a Senior Consultant, Gray will assist school districts on policy, board relations, finance, tax and business issues. He will also provide business and individual clients with financial and tax advisory services. Gray holds several professional licenses in the State of Wisconsin including Superintendent, Principal, Business Manager, Business Education and Registered School Business Administrator. Gray is a…
Elliot Brey and Estate of Ryan B. Johnson v. State Farm Mut. Aut. Ins. Co., et al., 2019 WL 6449010 (Ct. App., June 25, 2020) Elliot arose from a single-vehicle accident resulting in the death of Ryan Johnson, a passenger. Johnson’s son, Plaintiff-appellant, Elliot Brey (“Brey”), a minor, brought an action in Monroe County Circuit Court seeking recovery from the vehicle driver/owner and his insurer for negligence. Brey also named State Farm in the action seeking to recover, under the State Farm policy’s UIM provision, damages Brey sustained as a result of Johnson’s wrongful death, pursuant to Wis. Stat. §…
MILWAUKEE, WI – von Briesen & Roper, s.c., today announced the promotion of Attorney Jacob M. Bibis and Attorney Devin S. Hayes to Shareholders of the firm. Bibis is a member of the firm’s Litigation and Risk Management Practice Group. He focuses his practice on toxic tort, insurance coverage and general litigation matters. Bibis is recognized as a Rising StarSM by Wisconsin Super Lawyers®. He is a member of the State Bar of Wisconsin, the Milwaukee Bar Association and the Waukesha County Bar Association. Bibis received a J.D. from Marquette University and a B.S. from the University of Wisconsin. He…
The COVID-19 pandemic has impacted nearly every facet of our society. Collectively, we have had to modify the ways in which we work, shop, dine, travel, and socialize in order to slow the spread of the virus. Wisconsin’s worker’s compensation program is not immune to the coronavirus’ influence, and it is important for employers and insurance carriers to stay current with the evolving legal landscape. This Legal Update provides a brief overview of some of these changes and discusses the unique challenges Wisconsin employers and worker’s compensation carriers are facing during the pandemic. Compensability of COVID-19 With the gradual reopening…
Under the National Labor Relations Act, (“NLRA”), employers whose employees are represented by a union are required to bargain with the union before changing terms and conditions of employment, including disciplinary policies and procedures. Thus, an employer’s failure to bargain with a union before changing workplace conditions may violate the NLRA. When a union is newly certified, an employer must maintain the workplace status quo while negotiations for an initial union contract proceed. Under longstanding National Labor Relations Board (“NLRB”) case law, if an employer needed to discipline an employee while bargaining for its first contract, the employer was free…
On June 22, 2020, President Trump signed a proclamation suspending entry of foreign nationals in certain employment-based nonimmigrant categories, including H-1B, L-1, H-2B, and J-1. The H-1B category is used for professional-level specialty positions, L-1 is for managers, executives, and specialized knowledge employees of international companies, H-2B is for certain nonagricultural workers, and J-1 is for au pairs, medical residents and other interns, teachers, and summer work travel programs. Family members of foreign nationals in H-1B, L-1, H-2B, and J-1 status are also prohibited from entering the U.S. in derivative status. The proclamation became effective at 12:01 a.m. on June…
Under Section 8(a)(1) of the National Labor Relations Act (“NLRA”), employers are permitted to maintain uniform and dress code policies in the workplace, so long as such policies do not prohibit employees from wearing union insignia, absent special circumstances, such as health and safety concerns. While seemingly straightforward, application of this rule can be quite meticulous in practice. A recent National Labor Relations Board (the “Board”) case, World Color (USA) Corp., a Wholly-Owned Subsidiary of Quad Graphics Inc., 369 NLRB No. 104 (June 12, 2020), provides guidance as to when an employer can restrict apparel logos at work. When Can…
On May 6, 2020, the Department of Education (the “DOE”) published the long-awaited Final Rule implementing new Title IX regulations. According to the DOE, the purpose of the Final Rule is to hold schools accountable for failures to respond equitably and promptly to sexual misconduct incidents and ensure a more reliable adjudication process that is fair to all students. The regulations are applicable to complaints filed by both school district students and employees. All schools receiving federal funding must comply with the Final Rule by no later than August 14, 2020, meaning school districts must revise their Title IX policies…
In Choinsky v. Employers Ins. Co. of Wausau, 2020 WI 13, 390 Wis. 2d 209, 938 N.W.2d 548 the Wisconsin Supreme Court decided an insurance coverage duty-to-defend issue of first impression, ruling that an insurer which denies a claim and promptly follows the judicially-preferred procedure of filing a motion to intervene and stay pending a coverage determination (even if coverage is ultimately resolved in the insured’s favor) does not breach the duty to defend its insured. Choinsky, 2020 WI 13, ¶ 3, 390 Wis.2d 209, 215. The court further observed that if a circuit court denies any part of the…
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination in the workplace on the basis of race, color, religion, sex, and national origin. On June 15, 2020, the U.S. Supreme Court (the “Court”) held in Bostock v. Clayton County that Title VII’s protections extend to the LGBT community. BackgroundBostock actually involved three separate cases: Bostock, Zarda v. Altitude Express, and Stephens v. Harris Funeral Homes. In Bostock, Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. In Zarda, the employer fired Donald…
In a major decision for religious institutions of higher education, the National Labor Relations Board (the “NLRB”) recently ruled in Bethany College, 369 NLRB No. 98 (June 10, 2020) that it has no jurisdiction over faculty at such institutions. In reaching this decision, the NLRB also created a new jurisdictional standard, or test, for determining whether jurisdiction over faculty at religious educational institutions is appropriate. Bethany College overrules the NLRB’s prior jurisdictional standard, which was inconsistent with Supreme Court precedent. This Legal Update provides a brief summary of the Bethany College decision and its implications for religious educational institutions. The…