Monthly Archives: February 2015

Department of Labor Modifies the Definition of Spouse under the Family and Medical Leave Act (FMLA)

On February 25, 2015 the Department of Labor published a final rule effective March 27, 2015 which modifies the definition of spouse under the FMLA to include individuals in same-sex and common law marriages based on the place of celebration.  The change was made in light of the United States Supreme Court’s decision in United States v. Windsor in which the Court struck down Section 3 of the Defense of Marriage Act (DOMA).

Prior to the rule change, the state of residence controlled whether or not the term spouse included same-sex or common law marriages.  The place of celebration rule provides consistent recognition and FMLA rights for all legally married same-sex and common law employees regardless of where they live.  The place of celebration rule also recognizes FMLA rights for individuals married outside the United States as long as one state in the United States would recognize the validity of the marriage.

Employers should be aware of a couple points:

  • Civil unions are not considered marriages under the federal FMLA. However, before denying FMLA to an employee in a civil union, the employer should look to any state law benefits that may apply. For instance, the Wisconsin FMLA allows leave to domestic partners. Also, some leave types may be allowed under “in loco parentis” rules.
  • The final rule on same-sex and common law marriage states an employee may establish the requisite family relationship either by a simple statement asserting the relationship, or by providing other documentation the employee chooses to provide such as a marriage license or court document. However, employers should not require more proof of the requisite relationship from a same-sex or common law marriage employee than it would of an employee in an opposite sex marriage.
  • The rule limiting FMLA leave for spouses working for the same employer applies equally to same-sex and common law marriages.
  • The rule regarding leave to care for a stepparent or stepchild is the same for same-sex and common law marriages as for opposite sex marriages.
  • Nothing in the change to the definition of spouse changes or invalidates the rules regarding leave based on an “in loco parentis” relationship.

If you have any questions about this, please contact Laurie Petersen at

Wisconsin Very Likely to Become the Nation’s 25th Right to Work State

On February 23, 2015, Senate Bill 44 (bill) was introduced which, if passed by the legislature and signed by Governor Walker, would make Wisconsin a right to work state. Following a full-day Senate hearing on Tuesday, February 24, 2015, SB 44 was passed by the Senate Committee on Labor and Government Reform. An identical companion bill, Assembly Bill 61, was introduced the same day, which may further speed passage of the legislation by allowing the debate to proceed in both chambers. Here are some details on the bill:

  • This bill prohibits a person from requiring, as a condition of obtaining or continuing employment, an individual to refrain or resign from membership in a labor organization, to become or remain a member of a labor organization, to pay dues or other charges to a labor organization, or to pay any other person an amount that is in place of dues or charges required of members of a labor organization.
  • Any person who violates this prohibition is guilty of a Class A misdemeanor.

The bill must pass both the State Senate and Assembly before moving on to the Governor’s office. Once passed, the bill passed by the legislature will placed on the Governor’s desk. Upon signing, Governor Walker will identify the bill as 2015 Wisconsin Act 1, the first act signed in the new legislative term. 2015 Wisconsin Act 1 will be published in the Wisconsin State Journal the following day. The day following publication, Wisconsin’s right to work law will go into effect making Wisconsin the nation’s 25th right to work state.

There are several important points for unionized employers to consider regarding the bill and the timing of its passage including:

  • The right to work law will not impact current collective bargaining agreements and existing dues check-off provisions. It will first apply to collective bargaining agreements that have provisions inconsistent with the bill “upon the renewal, modification, or extension of the agreement occurring on or after the effective date of this subsection.”
  • By contrast, collective bargaining agreements that have not been ratified by the union membership on or after the date the bill goes into effect will be impacted. Accordingly, companies with open or expired collective bargaining agreements can expect pressure from their union partners to move quickly toward passage in order to preserve the unions’ existing right to collect union dues for the next contract term.
  • In addition, any mid-term contract modifications will also eliminate a union’s ability to collect union dues. Companies that have historically found their union willing to reopen the contract to address an issue requiring change, such as a change in insurance coverage, can expect resistance in attempting to re-open the agreement because doing so would negatively affect the union’s ability to collect union dues from their members.
  • It is important to note that the bill does not prohibit companies from deducting and collecting union dues from an employee’s earnings if the employee provides the company with a written, signed order authorizing such deduction. Further, the order signed by the employee must also provide that the employee may terminate the order by giving the employer 30 days’ written notice to the employer of his or her desire to terminate.
  • Employees who ultimately exercise their right to resign from the union and stop paying dues will still be covered by the collective bargaining agreement. Further, the union will still continue to owe them a duty of fair representation including the potential obligation to pursue a grievance on their behalf.

For continuous updates as the right to work legislation progresses, and updates on other legislation affecting the workplace and labor and employment-related topics, follow Daniel Finerty on Twitter: @DanielFinerty.

Proposed Changes to the Wisconsin Worker’s Compensation Act Included in Governor Walker’s 2015 Budget Bill

images[3]Governor Walker, as part of his budget bill that was released on February 3, 2015, proposed removing the Worker’s Compensation Division from the Department of Workforce Development (DWD) and moving the functions to the Department of Administration – Office of Hearings and Appeals (DOA) and to the Office of Commissioner of Insurance (OCI).  Specifically, the administrative law judges would be moved to the Office of Hearings and Appeals to join the judges currently in that office who handle hearings for many other state agencies.  The judges would be in charge of adjudicating cases only and would no longer be involved in the day-to-day administration of claims and disputes.  The rest of the staff would be moved to the Office of Commissioner of Insurance which would presumably take over all administrative functions including insurance regulation, claim  management, compensation payments and medical fee disputes. 

Previously, all amendments to the Worker’s Compensation Act have been proposed by the Advisory Council which is made of up representatives from labor, management and insurance.  The Advisory Council proposes amendments to the Act every other year which are almost always ratified by the Legislature.  Governor Walker’s budget bill marks the first time that changes to the Act have been proposed without the input or knowledge of the Advisory Council and, if passed, may make the Council’s role in legislation obsolete.   

The bill is currently being reviewed and revised by the Legislature.  If it passes the Legislature, it will become law once signed by Governor Walker.  The Governor has indicated that he would like the budget bill to be resolved by June 1, 2015, and any changes to the Act that are passed would take effect on January 1, 2016. 

There has been much conjecture regarding the effect this proposal may have on the worker’s compensation system as we know it today, but few details are known as to how this will change the day-to-day handling of claims, hearings and settlements.   The attorneys at Lindner & Marsack, S.C. are actively involved in monitoring this situation and will continue to provide our clients with updated information as it is released.    

Please contact any member of the Lindner & Marsack Worker’s Compensation Defense Practice with any questions.


You are Invited! 2015 Worker’s Compensation Spring Symposium

4th Annual Worker’s Compensation Spring Symposium

Register Now!

The Lindner & Marsack worker’s compensation team has been recognized by U.S. News and World Reports as one of the nation’s preeminent worker’s compensation defense practices. You now have the opportunity to join our first tier ranked team for a half-day morning worker’s compensation seminar we are conducting on March 12, 2015, at the Country Springs Hotel in Pewaukee, Wisconsin.

Our fourth annual symposium will discuss several hot topics in worker’s compensation including the top worker’s compensation trends in 2015 and 2016, the future landscape of the Wisconsin worker’s compensation system, a journey through a typical physical IME and more.  Click here for more information: 2015 Spring Symposium Final Invitation

Whether you are an insurance adjuster, safety manager or human resources professional, don’t miss this opportunity to learn about the latest developments in worker’s compensation that could affect your bottom line.

Be sure to register soon for this FREE event by emailing Chelsie Springstead at

Save the Date!

 Please mark your calendar for Lindner & Marsack, S.C.’s Annual Compliance/Best Practices Seminar 

When:  April 28, 2015

Time:  8:00 a.m. – 12:00 p.m.

Where:  Sheraton Milwaukee Brookfield Hotel – 375 South Moorland Road, Brookfield, Wisconsin

This FREE half-day event will address current topics in labor, employment, benefits & worker’s compensation law and provide employers across industries with practical and creative solutions for addressing their toughest workplace legal challenges.


  • Annual Labor & Employment Update (Plenary)
  • Wellness Plans – Ensure ADA Compliance & Avoid EEOC Litigation
  • Steps To Avoid The Retaliation Claim Trap
  • Worker’s Compensation Update
  • The National Labor Relations Board And Its Impact On Non-Union Employers

Watch your inbox as well as our Facebook, LinkedIn and Twitter pages for more detailed information about session topics and a link to register for this free seminar.

Public Employers May Reduce Prospective Retiree Health Insurance Benefits

February 16, 2015
By:  Alan M. Levy and Oyvind Wistrom

On February 12, 2015 the Wisconsin Supreme Court held that Milwaukee County could eliminate its payment of Medicare Part B premiums for otherwise eligible employees who retired more than three months after its adoption of ordinance amendment to that effect. Wisconsin Federation of Nurses and Health Professionals, Local 5001, AFT, AFL-CIO, et al. v. Milwaukee County, 2015 WI 12. This decision comes after the decision in Stoker et al. v. Milwaukee County et al., 2014 WI 130, argued the same day, which allowed prospective reduction of a pension multiplier.

The retiree health benefit required 15 years of credited service, a minimum retirement age and (originally) a date of hire prior to July 31, 1989. In 2010 the ordinance was amended to provide that the benefit would no longer be paid to otherwise qualified employees who retired on or after April 1, 2011, with extensions of the date for existing union contracts which would expire later. The WFN sued (after its contract expired) on the basis of ordinances and session laws which allegedly treated retiree health benefits as vested like pensions and prohibited the diminishment of any pension benefit by subsequent amendment.

The Court’s 5-2 majority emphasized that pensions and health insurance are two different kinds of benefits, and that “by their nature, health insurance benefits have always been fluid opportunities available for a limited period of time . . . .” The County had argued that health benefits are never frozen at the time of retirement because retirees expect to receive the improvements in medicines and treatments which occur later, and premium costs change to pay for those changes. Therefore, benefits and premiums can be changed prospectively.

This opinion takes the same position as Loth v. City of Milwaukee, 2008 WI 129, 315 Wis. 2d 35, 758 N.W.2d 766, which allowed a prospective reduction in retiree health benefits, and it declined to apply pension and disability decisions which had contrary results. ( Stoker has allowed the County to reduce the pension multiplier applicable to future years of service.) Most important, the distinction between pensions and health benefits allows the employer to adapt its benefits and costs to the reality of modern circumstances, and its own ability to pay inherent in a public entity’s relationships with its employees (a topic discussed in Justice Prosser’s concurrence).

The magnitude of the authority sustained here depends on the number of employees on retirement in future years who were originally subject to the premium subsidy. If this change were to affect as few as 1000 retiring employees and their spouses, the savings to taxpayers will be approximately $2,500,000.00 per year. Other public employers which offer retiree health care benefits will be able to rely on this analysis to achieve similar savings if the language of their benefit plans and ordinances allows a similar approach to claims of unchangeable vested benefits.

Alan Levy of Lindner & Marsack, S.C. represented Milwaukee County throughout this litigation, as well as the City in Loth and the County in Stoker. If you have any questions about this, please contact him at


Attorneys David C. McKone and Kristofor L. Hanson Named as Shareholders

David McKoneKristofor Hanson

Today, two additional attorneys – David C. McKone and Kristofor L. Hanson – will join the firm’s leadership as shareholders.

According to Lindner & Marsack President Jonathan T. Swain, both attorneys personify the firm’s values and commitment to unparalleled client service. “With the challenges facing employers today, our attorneys work to provide a road map to success by helping clients define the best route to reach their goals while assessing costs and managing risks along the way,” says Swain. “In their respective practice areas, David and Kristofor have proven themselves as dedicated leaders who work tirelessly for the success of their clients as well as the firm.”

David C. McKone concentrates his legal practice on defending workers’ compensation claims for the insurance industry and self-insured employers. His experience includes all aspects of insurance litigation, including health law, personal injury law, property damage and subrogation, with a primary emphasis on workers’ compensation. A frequent speaker and lecturer, Mr. McKone received his law degree from Marquette University Law School. He is a member of the State Bar of Wisconsin, the National Workers’ Compensation Defense Network and the Wisconsin Association of Workers’ Compensation Attorneys.

Recognized in three of the past four years as a “Rising Star” by Super Lawyers, Kristofor L. Hanson represents employers in various labor and employment law matters including employment discrimination claims, wage and hour issues, unemployment claims, Family and Medical Leave Act and disability claims, disputes arising under the National Labor Relations Act, and other labor-related matters such as collective bargaining and arbitration. He graduated cum laude from Marquette University Law School. In addition to being a member of the State Bar of Wisconsin and the American Bar Association, Hanson is the Vice President of the Board of Directors for the Curative Care Network, and a member of the City of Cedarburg Board of Appeals.