The Wisconsin Supreme Court recently overturned a longstanding line of cases that allowed disabled employees to prevail in discrimination cases without proving the employer intended to discriminate or was even aware that the employee was disabled. On June 26, 2018, the Wisconsin Supreme Court issued its long-awaited decision in Wisconsin Bell, Inc. v. Labor and Industry Review Commission and Charles Carlson (Carlson).1 The case involves the Labor and Industry Review Commission’s (“LIRC”) expansive definition of what it means to discriminate against employees “because of” a disability under the Wisconsin Fair Employment Act (“WFEA”).
Articles Discussing General Topics In Wisconsin Labor & Employment Law.
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 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 Court Overturns $2.2 Million Jury Verdict in Favor of Former Doctor, Finding His Employment-at-Will Agreement Was Not Superseded by a Subsequent Policy
The Wisconsin Court of Appeals recently reaffirmed long-standing precedent holding that employment-at-will agreements may not be modified by a policy or procedure unless it contains an express provision demonstrating that the parties intended to be bound by something other than the established at-will relationship.
Wisconsin Legislature Proposes Employer-Friendly Changes to State Employment Laws Related to Offers of Settlement and Remedies
A bill recently proposed in Wisconsin could seriously change litigation strategy and settlement considerations for many employment claims filed with state agencies. Assembly Bill 64 would amend the Wisconsin Fair Employment Act (“WFEA”), the Wisconsin Family and Medical Leave Act (“WFMLA”), and the relatively new Organ and Bone Marrow Donation Law (“OBMDL”) by empowering both the complainant and an employer to make a statutory offer of settlement. Failing to accept such a settlement offer could result in significant financial consequences.
How Wisconsin’s Reversal of Decades-Old Ban on Switchblades and Knives Applies to Employers
A new Wisconsin law has repealed the state’s prohibition (which has existed for more than 50 years) on manufacturing, selling, transporting, purchasing, or possessing a switchblade and which subjected violators to $10,000 in fines and nine months in jail.
Wisconsin Supreme Court Weighs in on the Compensability of Pre- and Post-Shift Work
The Wisconsin Supreme Court recently helped clarify the circumstances under which pre- and post-shift donning and doffing constitutes compensable work under Wisconsin’s minimum wage and overtime laws.1 The decision, which involved production workers at a plant owned by Hormel Foods Corporation (“Hormel” or “the company”), also appears to narrow the applicability of the federal de minimis rule under state law.
Wisconsin Eases, But Does Not Eliminate, the One Day of Rest in Seven Law
Effective July 14, 2015, Wisconsin has made it easier for an employer to comply with Wisconsin Statute 103.85, Wisconsin’s “one day of rest in seven” requirement. Under this statute, most factory and mercantile employers must provide their employees with at least 24 consecutive hours of rest for every 7 consecutive days worked. These restrictions do not apply to certain categories of workers, including janitors; security personnel; those employed in the manufacture of butter, cheese or other dairy products, or in the distribution of milk or cream; those who work in canneries or freezers; individuals who are employed in bakeries, flour and feed mills, hotels or restaurants; employees whose duties include no work on Sunday other than caring for live animals or maintaining fires; and workers whose labor is required by an emergency situation that could not reasonably have been anticipated.
Unions Sue to Stop Wisconsin’s New Right-to-Work Law
The day after Wisconsin Governor Scott Walker (R) signed the state’s new right-to-work act, unions struck back with a complaint and a motion for a restraining order and temporary injunction. Three unions in Wisconsin, the International Association of Machinists and Aerospace Workers (“IAM”) District 10 and Local 1061, the United Steelworkers (“USW”), and the AFL-CIO, banded together against the State of Wisconsin, Governor Walker, and a handful of Wisconsin state agency officials to seek injunctive relief in Dane County Circuit Court.
Wisconsin Becomes 25th Right-to-Work State
The Wisconsin State Assembly has voted to make Wisconsin the 25th right-to-work state in the country.
Wisconsin Becomes Next “Right to Work” State
On March 6, 2015, Wisconsin’s State Assembly approved legislation that will make Wisconsin the 25th “Right to Work” state in the country. Governor Walker has said he intends to sign 2015 Assembly Bill 61 into law within days. The legislation significantly modifies Chapter 111 of the Wisconsin Statutes by, among other things, prohibiting employers and labor organizations from requiring employees to join, remain a member of, or financially support a labor organization as a condition of employment. Violation of the law will be a Class A misdemeanor. A brief summary of the key points follows.
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.
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.