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Independent Contractor . . . or Not? DOL and Wisconsin DWD Team Up to Reduce Employee Misclassification

On January 20, 2015, the U.S. Department of Labor (DOL) announced that Wisconsin had become the latest state to join the “Misclassification Initiative,” which is designed to protect the rights of employees “by preventing their misclassification as independent contractors or other nonemployee statuses.” Wisconsin is the 19th state to sign a Memorandum of Understanding (MOU) with the DOL for the purpose of sharing information and coordinating enforcement regarding employee classification. The MOU between the DOL’s Wage and Hour Division and Wisconsin’s Department of Workforce Development has an initial term of three years.

Employer Violated Wisconsin FMLA When it Terminated Unauthorized Worker who Took Medical Leave

A Wisconsin court of appeals was not swayed by a recent argument that an employer did not violate the Wisconsin FMLA when the employer terminated an employee returning from medical leave for lacking work authorization. In Burlington Graphic Systems, Inc. v. Department of Workforce Development, Appeal No. 2014AP762, an undocumented employee, Karen Alvarez, of Burlington Graphic Systems took one week of leave after surgery. When Alvarez returned to work, the company terminated her employment for unexcused absences. The employee then filed a complaint against the company with the Wisconsin Department of Workforce Development. The Department found probable cause that the Wisconsin FMLA had been violated and set a hearing before an administrative law judge (ALJ). The company rehired the employee prior to the hearing, and required her to complete a Form I-9 as a new hire. Alvarez could not produce documents proving she was authorized to work so Burlington, as a result the company terminated her employment.

Wisconsin Court of Appeals Holds Employees Cannot Contract Away Their Right to Paid Break Time

What are the legal rules that determine when an employer must pay non-exempt employees for time spent taking rest and meal breaks? The Wisconsin Court of Appeals recently held that Husco International, Inc., (“Husco”) was obligated to pay its employees for 20 minute breaks even though the breaks had been unpaid for years as provided in a collective bargaining agreement. The case, Aguilar v. Husco International, Inc., illustrates the principle that employees cannot contract away their Wisconsin wage and hour rights.

Despite Recent Legislation, Wisconsin Employers Should Still Consider Tracking The Hours Worked By Their Exempt Employees

State and federal wage and hour laws require Wisconsin employers to maintain accurate records of, among other information, the hours worked by their non-exempt employees. Until very recently, Wisconsin law extended this requirement to exempt employees, too. Although there is no private cause of action for inaccurate or incomplete wage and hour records under Wisconsin law, these records can be among the strongest evidence against employee claims of unpaid work.

Noncompete Case Certified to Wisconsin Supreme Court on Issue of Consideration

The Wisconsin Court of Appeals has asked the Wisconsin Supreme Court for “guidance” as to whether additional consideration is required to support a covenant not to compete entered into during an at-will employment relationship. The case, Runzheimer International, LTD v. Friedlen, involves an action by Runzheimer International, Ltd to enforce a non-compete agreement signed by David Friedlen in 2009, after Friedlen had been working at Runzheimer as an at-will employee for nearly 20 years. Signing the agreement was made a condition of Friedlen’s continued employment and his participation in the company’s yearly incentive plan. The agreement did not increase Friedlen’s salary, nor did it make him eligible for incentives that he had not been eligible for prior to signing the agreement. The trial court found that the non-compete was invalid because it lacked sufficient consideration. Runzheimer appealed, arguing that there should be no difference in how courts treat restrictive covenants entered into at the start of employment and those entered into after years of employment, because “every day is a new day both for employer and employee in an at-will relationship.”

The Midwest Employer Spring 2014

The Midwest Employer Spring 2014

Wisconsin Limits Employers’ Access to Personal Social Media Accounts of Employees, Job Applicants

Adopting restrictions on employers’ ability to access the social media accounts of employees and job applicants, Wisconsin has joined 12 other states with similar restrictions.

Wisconsin Adopts Password Protection Law

Wisconsin has become the thirteenth state to enact a law limiting the circumstances under which employers may request or require access to the personal internet accounts of applicants and employees. The 2013 Wisconsin Act 208,1 which amends the Wisconsin Fair Employment Act (WFEA) and will be enforced by the Department of Workforce Development (DWD), prohibits employers from “requesting or requiring” employees and applicants to provide “access information” for their “personal Internet account” or “to otherwise grant access to or allow observation of that account.” A "personal Internet account" is any “Internet-based account that is created and used by [an employee or applicant] exclusively for purposes of personal communications.” “Access information” means the “password or any other security information” that protects access to a personal Internet account. Access information does not include an employee’s personal e-mail address; the Act expressly permits employers to require employees to disclose that information. In addition to prohibiting these requests for access information and access, the new law, as a general rule, prohibits employers from discriminating or retaliating against (e.g., discharging or refusing to hire) an employee or applicant who exercises their rights under the law.

Wisconsin Introduces Legislation Prohibiting Workplace Discrimination Based on Seasonal Flu Vaccination Status

While some states are clamoring for stricter laws concerning mandatory influenza vaccinations, some lawmakers in Wisconsin have taken the opposite approach. A public hearing was held on November 13, 2013 regarding Assembly Bill 247, which would prohibit Wisconsin employers – including healthcare employers – from demoting, suspending, firing or discriminating against employees who refuse a seasonal influenza vaccination. The bill would also prohibit employers from...

Wisconsin Hospital to Pay $3.5 Million to Settle Nurses’ Meal Period Class Action

A federal court in Wisconsin recently granted preliminary approval to a $3.5 million settlement between a hospital and nearly 1,400 nurses in one of the many recent cases involving automatic deduction of meal breaks from wages.