Lindner & Marsack

(414) 273-3910

Winning Legal Strategies for Employers Since 1908

Daniel J. Finerty

"An understanding of the client's business needs is essential to become, and remain, their true partner."

Daniel Finerty

Professional experience

Daniel J. Finerty is a shareholder of Lindner & Marsack, S.C. Mr Finerty concentrates his legal practice on representing and counseling clients in labor and employment litigation and compliance matters in front of administrative agencies, federal, state and tribal courts and in labor arbitration. Daniel has represented Wisconsin counties, cities, school districts, Native American tribes, tribally-owned businesses, and private sector employers in senior living, healthcare, manufacturing, food manufacturing, hospitality, retail, transportation, construction, commercial laundry, dry cleaning and other industries. He has handled litigation matters involving Title VII, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Occupational Safety and Health Act, the Wisconsin Fair Employment Act, the City of Madison Equal Opportunities Ordinance and other federal, state, local law and tribal ordinances.

Daniel has a great deal of experience defending senior living providers from Wisconsin Health Care Worker Protection Act retaliation claims, Wisconsin Fair Employment Act discrimination, retaliation and harassment claims, unreasonable refusal to rehire worker’s compensation claims, and other claims that typically follow from a provider client’s investigation and termination of an employee due to a violation of their resident rights policies and other misconduct.

Also, Daniel has handled hundreds of employment claims involving Employment Practice Liability Insurance (EPLI) for public-sector, private-sector, non-profit and tribal clients and understands that many employment litigation attorneys can obtain good results; however, what differentiates his aggressive defense on EPLI cases is how his hard work positively reflects the importance of superior claims service to his EPLI carrier partners and achieves the results that the insured clients want.

Recent employment litigation matters filed in the Equal Employment Opportunity Commission and the Wisconsin Department of Workforce Development on which Daniel has worked include: 

  • Successfully defended in the court of appeals a circuit court judgment awarding attorney’s fees incurred due to frivolous filing and pursuit of motion to hold liable against senior living provider after creditor was informed that it had garnished the wrong corporate entity. 
  • On behalf of a senior living provider client, secured dismissal of termination-based Health Care Worker Protection Act retaliation and race discrimination claims following hearing in the Wisconsin Equal Rights Division (ERD), affirmed on appeal to the Labor and Industry Review Commission (LIRC), following termination of Certified Nursing Assistant (CNA) for violation of resident rights policy. 
  • Defended cleaning service provider in federal court from former employee’s claim for religious discrimination, retaliation and failure to accommodate religious beliefs after employee’s refusal to accept or even discuss transfer options that would provide accommodation. 
  • Defended manufacturing client in federal court from former employee’s allegation that company failed to correctly pay wages under the Fair Labor Standards Act (FLSA) and Wisconsin law. 
  • Defended landscaping contractor from former employee’s claims alleging, among other things, breach of contract and FLSA and Wisconsin law violations. 
  • On behalf of a senior living provider client, secured dismissal of former CNA’s race discrimination terms-and-conditions and termination claims after CNA’s termination for violation of resident rights policy at an ERD hearing, a decision affirmed by LIRC. 
  • On behalf of manufacturing client, secured dismissal of former employee’s disability discrimination claim after employee was placed on leave and removed from the workplace due to safety-related concerns and subsequently terminated, a decision affirmed by LIRC. 
  • On behalf of automobile dealership client, secured dismissal of former employee’s unreasonable refusal to rehire worker’s compensation claim after termination due to economic circumstances, affirmed by LIRC and the circuit court. 
  • On behalf of mental health provider client, secured dismissal of sex, sexual orientation and disability discrimination claims filed with the ERD by effectively utilizing former employee’s admissions during sworn testimony in another venue. 
  • On behalf of food manufacturing client, secured dismissal of former employee’s unreasonable refusal to rehire worker’s compensation claim after termination for violation of mission-critical quality control procedures. 
  • On behalf of school district client, obtained summary judgment dismissing former educator’s allegations of race discrimination terms-and-conditions and termination claims in federal district court, a decision affirmed by a federal court of appeals. 
  • On behalf of manufacturing client, secured closure of EEOC review of discrimination claim without further investigation due to lack of jurisdiction. 
  • On behalf of food manufacturing client, secured dismissal after investigation of former employee’s claims for interference under the Wisconsin Family and Medical Leave Act. 
  • On behalf of public sector clients, successfully established in arbitration that temporary layoff decisions were both economically motivated and lawful exercises of management rights reserved to elected officials. 

Recent matters Daniel has handled involving employment litigation defense of Native American tribes, tribally-owned businesses and others in litigation arising under tribal ordinances and/or being litigated in tribal court include:

  • Successfully defended tribally-owned casino on motion for default judgment contending the summons and complaint were not properly served upon the correct tribal entity. 
  • Defended tribal law enforcement agency after former employee terminated due to workplace behavior sued in tribal court alleging retaliation and violation of “just cause” ordinance. 
  • Defended tribe after former employee terminated for using foul language, disobeying direct orders and other misconduct sued in tribal court alleging violation of “just cause” ordinance. 
  • Defended tribally-owned business from former employee’s suit in tribal court alleging discrimination and lack of “just cause” for termination, a claim that was voluntarily dismissed. 
  • Prevailed on motion to dismiss ethics complaint (prior to investigation) filed against tribal agency, tribal elder client and other respondents. 
  • Successfully engaged in mediation to resolve long-running, contentious litigation between two tribal agencies on behalf of defendant tribal elder client. 

Matters limited to the Wisconsin Unemployment Insurance Division on which Daniel has represented clients include: 

  • On behalf of health care clinic, successfully obtained reversal of Appeal Tribunal hearing decision against client by LIRC based on Administrative Law Judge’s failure to examine necessary issues raised by client as required by Department of Labor requirements. 
  • In the same case, successfully represented client during hearing to obtain misconduct preventing former employee from collecting UI benefits after remand due to former employee’s comments and physical conduct against two female co-workers, a finding affirmed on appeal by LIRC. 
  • On behalf of mental health provider client, successfully persuaded LIRC to modify general misconduct determination to find specific violation of Wisconsin’s amended misconduct provision involving breach of internal HIPAA policies and procedures. 
  • On behalf of construction contractor, obtained 50% reduction in fees awarded to complainant’s counsel after a finding of arrest record discrimination and successfully obtained finding for conviction record discrimination, that would have resulted in substantial backpay award.
  • On behalf of manufacturing client, secured specific misconduct finding under Wisconsin’s amended misconduct provisions, which bars acts of harassment instigated by a worker while at the employer’s place of business, due to employee’s harassing comments regarding co-worker’s sexual orientation, which violated client’s anti-harassment policy. 
  • On behalf of retail client, secured reversal of adverse Appeal Tribunal decision by LIRC, which found misconduct due to numerous instances of tardiness despite notice that was provided due to invalid reason for tardiness. 
  • On behalf of service company client, secured reversal of adverse Appeal Tribunal decision by LIRC, which found that employee quit without good cause attributable to employer where financial constraints prevented a voluntary bonus payment. 
  • On behalf of manufacturing client, secured reversal of adverse Appeal Tribunal decision by LIRC due to misconduct through lax performance of important quality assurance duties. 
  • On behalf of manufacturing client, successfully defended favorable Appeal Tribunal decision by LIRC after employee walked off the job during the work day by showing that production was interrupted. 
  • On behalf of retail client, secured misconduct finding from Appeal Tribunal due to co-worker harassment using text messages, a result affirmed by LIRC. 
  • On behalf of residential service provider, secured misconduct finding from Appeal Tribunal due to employee’s failure to effectively communicate to ensure continuous resident care, chronic, unexcused tardiness, and continued unauthorized use of a provider-owned mobile phone.
  • On behalf of residential service provider, secured misconduct finding from Appeal Tribunal due employee’s failure to comply with hourly punch and bed check policy on 3rd shift to ensure resident safety.

 

 

Bar admissions - STATE AND FEDERAL COURTS:

  • Wisconsin, 1998
  • U.S. District Court, Eastern District of Wisconsin, 1998
  • U.S. District Court, Western District of Wisconsin, 1998
  • U.S. Court of Appeals for the Seventh Circuit, 1999
  • U.S. District Court, Northern District of Illinois (Trial Bar), 2013

BAR ADMISSIONS - TRIBAL courts:

  • The Stockbridge-Munsee Community Band of Mohican Indians Tribal Court, 2009
  • The Ho-Chunk Nation Judiciary, 2013
  • The Sokaogon Chippewa Community Mole Lake Band of Lake Superior Chippewa Tribal Court, 2019
  • The Menominee Indian Tribe of Wisconsin Tribal Court, 2019
  • The Oneida Judiciary of the Oneida Nation, 2019
  • The Lac Courte Oreilles Band of Lake Superior Chippewa Indians Tribal Court, 2019
  • The Lac du Flambeau Band of Lake Superior Chippewa Indians Tribal Court, 2019
  • The St. Croix Chippewa Indians of Wisconsin Tribal Court, 2019
  • The Bay Mills Indian Community Tribal Court, 2020
  • The Grand Traverse Band of Ottawa and Chippewa Indians Tribal Court, 2020
  • The Keweenaw Bay Indian Community Tribal Court, 2020
  • The Sault Ste. Marie Chippewa Tribal Court, 2020
  • The Lac Vieux Desert Band of Lake Superior Chippewa Indians Tribal Court, 2020
  • The Little Traverse Bay Bands of Odawa Indians Tribal Court, 2020

Education:

  • Marquette University, J.D., 1998
  • University of Wisconsin – Madison, B.A., 1994.
    Major: Political Science and Spanish

Memberships

  • Defense Research Institute – Employment and Labor Law Committee and Native Nations Law Task Force
  • Wisconsin Defense Counsel
  • State Bar of Wisconsin – Labor and Employment and Indian Law Sections
  • Metropolitan Milwaukee Society for Human Resource Management (MMSHRM).
  • SRKA - SHRM Racine/Kenosha Area Chapter

RECENT ARTICLES

  • Daniel’s article, co-authored with Peter Nowak, a recent University of Wisconsin-Madison Law School graduate, provides an introduction to and background regarding the state counterpart to the Fair Labor Standards Act, the Wage Payment Claims and Collections Act, the language and background of it Civil Penalty claim for an additional 50% or 100% of damages and how to ensure such a claim is properly defended. © 2020 Wisconsin Defense Counsel. All rights reserved. Finerty, Daniel and Peter Nowak, Are Plaintiffs Overcharging Wisconsin Wage-and-Hour Claims?Wisconsin Civil Trial Journal (Summer 2020).
  • Daniel’s thorough article provides a primer and review on Employment Practice Liability insurance claims handling, examines best practices for defense counsel, notes the importance of reexamining the game plan and settlement options and acknowledges to the claims management personnel with whom he has worked with over the years. © 2020 Wisconsin Defense Counsel. All rights reserved. Finerty, Daniel,Employment Practice Liability Insurance Provides Essential Risk Management for Businesses of All Sizes, Wisconsin Civil Trial Journal (Spring 2020). 
  • Daniel's well-researched article reviewed the first slate of decisions from the Labor and Industry Review Commission which applied the specifically-defined misconduct provisions implemented by the 2013 Act 20 changes, a dramatic injection of "common sense" into the Unemployment Insurance system, and provides useful guidance when challenging UI claims. © 2014 Wisconsin Defense Counsel. All rights reserved. Finerty, Daniel, LIRC Confronts Recent Changes to Wisconsin Unemployment Insurance Misconduct StandardWisconsin Civil Trial Journal (Summer 2014). 
  • Daniel reviewed the broadly-worded "protected activity" outlined in the Affordable Care Act's retaliation provision, reviews the Occupational Safety and Health Administration's ACA retaliation claim filing procedures and suggests an acute awareness of the broadly-definition of "protected activity" is critical to proactively take steps to prevent or reduce the impact of ACA retaliation claims as the implementation of the employer mandate approaches. © State Bar of Wisconsin 2013. Finerty, Daniel J., An Ounce of Prevention: Minimizing Affordable Care Act Retaliation ClaimsWisconsin Lawyer, Volume 86 No. 8 (October 2013).

Recognitions/Awards

  • Rated AV Preeminentby Martindale Hubbell in Labor and Employment Law
  • Recognized among the Best Lawyers in Americain Appellate Practice every year since 2010
  • Recognized as a Rising Star five times by Wisconsin Super LawyersMagazine
  • Recognized as a SuperLawyer in 2014, 2015, 2016, 2017 and 2018 by Wisconsin Super Lawyers Magazine