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Total Articles: 10

Commission Overrules Xu v. Epic Systems, Finds Valid Arbitration Agreement or Waiver Bars Prosecution of WFEA Claims Before ERD

In Ionetz v. Menard, Inc., the Wisconsin Labor and Industry Review Commission overruled its previous and highly controversial decision Xu v. Epic Systems, Inc..

Wisconsin Law Prohibits Local Regulation of Several Employment Issues, Does Not Preempt Discrimination Ordinances

On April 16, 2018, Wisconsin Governor Scott Walker signed an amended version of 2017 Assembly Bill 748, thereby declaring a number of employment issues to be matters of statewide concern and therefore beyond the scope of municipal regulation. Although the bill originally included a provision that would have prohibited local regulation of employment discrimination, that provision was removed by an amendment. As such, municipalities remain free to enact and enforce equal employment opportunity ordinances at the local level like the Madison Equal Opportunities Ordinance and the De Pere Non-Discrimination in Housing, Public Accommodation and Employment Ordinance, both of which remain in effect.

Wisconsin Legislature Preempts Local Enactment of Wage and Hour Regulations

Joining more than two dozen other states that have barred local enactment of minimum wage or other employment laws, on March 22, 2018 the Wisconsin legislature passed Assembly Bill 748, intended to promote statewide uniformity in the regulation of employment practices. AB 748 prevents local governments and municipalities from enacting and enforcing their own ordinances relating to various employment matters, including several areas pertaining to wage and hour law. Governor Scott Walker is expected to sign the Bill into law in the near future.

Still "Open for Business" – New Wisconsin Legislation to Preempt Most Local Employment Ordinances

In recent years, cities, counties, and other local government bodies across the country have enacted ordinances increasing the minimum wage, granting paid and unpaid sick leave, placing restrictions on how employees are scheduled, and requiring employers to enter into “labor peace agreements” with unions. As this activity has intensified, employers with operations in multiple jurisdictions within a state or across multiple states have been confronted with the onerous task of complying with a patchwork of conflicting employment rules. Wisconsin is about to join the list of over a dozen states that have taken action to preempt local governments from passing such ordinances.

Wisconsin School and Municipal Employee Unions Must Petition for Election by September 15 to Avoid Decertification

Wisconsin Statutes Section 111.70(4)(d)(3) provides that, “Annually, the [Wisconsin Employment Relations Commission] shall conduct an election to certify the representative of the collective bargaining unit that contains a general municipal employee.” (The law does not cover public safety or transit employees.) A union must receive at least 51 percent of the vote in the annual certification election to remain or become the representative.

Wisconsin Commission Finds Employers Cannot Consider Expunged Convictions—Even if Substantially Related to the Job

The Wisconsin Fair Employment Act prohibits employers from taking adverse employment action against an applicant or employee because of the individual’s conviction record, unless the conviction is “substantially related” to the position sought or held. Wisconsin law permits certain offenders who commit crimes before they reach the age of 25 to have their convictions expunged. The Wisconsin Labor and Industry Review Commission recently decided that employers cannot rely on expunged convictions when arguing that an individual’s conviction record is substantially related to a job.

Wisconsin Legislature Poised to Prohibit Local Employment Ordinances and Exempt Certain Employers From WFMLA

While all eyes have rightfully been focused on Washington, D.C., during the recent and ongoing drama surrounding the government shutdown, in Madison, the Wisconsin Legislature is poised to take action on two measures that may have a significant impact on Wisconsin employers. In the first bill, the Wisconsin Legislature seeks to prohibit local governments from enacting or enforcing certain employment regulations at the local level. If passed, this bill could summarily put an end to the Madison Equal Opportunity Ordinance. In the second bill, the Wisconsin Legislature would exempt from the Wisconsin Family and Medical Leave Act (WFMLA) any employer that is also covered by the federal Family and Medical Leave Act (FMLA). These significant proposals are in keeping with other employer initiatives enacted during Governor Walker’s tenure.

Wisconsin Supreme Court Applies Non-Compete Law To Invalidate Anti-Poaching Covenant

On January 19, 2018, a divided Wisconsin Supreme Court held that an employee non-solicitation covenant was overly broad and unenforceable under state law. In the decision, entitled The Manitowoc Company, Inc. v. Lanning, Case No. 2015AP1530 (Wisc. Jan. 19, 2018), the Court confirmed Wisconsin Statute §103.465, which governs covenants not to compete, extends to agreements not to solicit employees. Because the employee non-solicitation covenant did not meet the statutory criteria for valid non-competes, the Court held it unenforceable in its entirety, “even as to any part of the covenant that would be a reasonable restraint.”

Wisconsin Employers Now Subject to Tort Lawsuits for Temporary Workers’ Workplace Injuries

On January 9, 2018, District III of the Wisconsin Court of Appeals held that temporary workers who are injured while working for their host employers have the right to elect either to claim workers’ compensation benefits or to sue their host employers in tort. The decision turns on its head the Wisconsin Worker’s Compensation Act’s exclusive remedy provision, exposes thousands of employers in Wisconsin to tort liability that they previously did not have or anticipate having, and threatens general liability insurance carriers with risks they never anticipated accepting or priced their premiums to take into account. In Re the Estate of Carolos Esterley Cerrato Rivera v. West Bend Mutual Insurance Company, No. 2017AP142.

Wisconsin Supreme Court Holds That Employee Non-Solicitation Agreements are Subject to a Strict Enforcement Standard

In Wisconsin, post-employment restrictive covenants are governed by Wis. Stat. § 103.465, requiring that any restrictive covenant be reasonable to be enforceable.1