Monthly Archives: July 2016

Wisconsin Mandates Leave for Organ and Bone Marrow Donation

By: Sally A. Piefer

Wisconsin law mandates a number of different leaves for employees, including family and medical leave. Effective July 1, 2016, Wisconsin joined the growing number of states which now require private employers to provide leave for employees who are bone marrow or organ donors. This new law warrants the attention of Wisconsin employers.

Many of the provisions of the donation leave follow Wisconsin’s Family & Medical Leave law (WFMLA). Like the WFMLA, the new law applies to employers with 50 or more employees. Employees are eligible for the leave if they have worked for the employer for at least 52 consecutive weeks and have worked at least 1,000 hours during that 52-week period. The law allows eligible employees up to 6 weeks of unpaid leave during a 12-month period, but employees may substitute other paid leave provided by the employer.

Employees are required to schedule the donation procedure so that it doesn’t unduly disrupt an employer’s operations, and must give the employer reasonable advance notice of the need for the leave. Employers can ask the employee to provide certification of the need for the leave, but this certification is limited to:

  1. Confirmation the donee has a serious health condition the necessitates a bone marrow or organ transplant;
  2. The employee is eligible and has agreed to serve as a bone marrow or organ donor for the donee; and
  3. The amount of time expected to be necessary for the employee to recover from the bone marrow or organ donation procedure.

In addition to providing the leave, employers must also maintain the employee’s group health insurance coverage under the same conditions as existed immediately before the leave began. If the employee makes his/her contribution to the group insurance coverage, the employer must also continue making its share of the premium payment.

Provided the employee returns to work within the 6 weeks allowed for donation leave, the employee must be reinstated to the same position held when the leave began, or if that position is no longer vacant, to an equivalent position “having equivalent compensation, benefits, working shift, hours of employment, and other terms and conditions of employment.”

There is nothing in the donation law which prohibits an employer from having donation leave run concurrently with an employee’s eligibility for FMLA or WFMLA. So if the bone marrow or organ donation also satisfies the definition of a “serious health condition,” the time taken for donation leave could also be counted for purposes of the FMLA and/or WFMLA. If, however, an employee’s allotment of FMLA and/or WFMLA has been exhausted – or the leave does not constitute a “serious health condition,” the employee is still eligible for up to 6 weeks of donation leave.

The law prohibits interference with or denial of leave and it also prohibits discrimination or retaliation against any employee who exercises his/her right to take the leave. The law also follows the WFMLA process in the event an employee feels that an employer has violated the law, including the ability to bring a civil action once the administrative process has been completed.

What should employers do now? While bone marrow and organ donation leave may not be frequent events, they are likely to become more common as advances are made in the medical community. To ensure your compliance, employers should take the following steps:

  1. Wisconsin employers with 25 or more employees should ensure that you have posted your policy on taking time off for bone marrow or organ donation.
  2. Wisconsin employers with 50 or more employees must:

For more information about the donor leave law or your general employment law needs, please contact Attorney Sally Piefer at (414) 226-4818 or or any of the other attorneys you work with here at Lindner & Marsack, S.C.

Three Lindner & Marsack Attorneys to Present at the State Bar of Wisconsin Health, Labor & Employment Law Institute

Lindner & Marsack’s Tom Mackenzie, Laurie Petersen and Daniel Finerty will share expertise on a variety of employment law matters at the State Bar of Wisconsin’s 2016 Health, Labor, and Employment Law Institute, an event is designed to share comprehensive information to help attorneys stay current on new developments that impact health, labor and employment law practice.

The conference will be held at the Wilderness Hotel and Golf Resort in Wisconsin Dells on August 18-19 and the agenda includes:

  • Tom Mackenzie will co-present NLRB Update: The Changing Landscape of Labor with Jennifer Abruzzo, Deputy General Counsel to the National Labor Relations Board. The focus will be on ever-changing issues faced by today’s employers including topics critical to health care employers such as the use of cameras and videotaping in the workplace, “English only” policies, civility and confidentiality rules and other updates regarding recent changes to the election rules (Breakout Session 1: Thursday, August 18th at 10:05 a.m.).
  • Daniel Finerty will present Advanced Issues in Health Care Employee Background Checks to further review the applicable federal and state law regarding background checks and review recent examples of missteps in the hiring process and claims filed by applicants (Breakout Session 3: Thursday, August 18th at 1:25 p.m.).
  • How to Fire Someone the Right Way will be presented by Laurie Petersen along with Richard Rice of Fox & Fox, S.C. The session will explain that it is best to provide a legitimate, clearly-articulated business reason for termination in order to prevent costly litigation and obtain the best result (Breakout Session 3: Thursday, August 18th at 2:35 p.m.).
  • Lindner & Marsack will co-host a complimentary Thursday Evening Social Hour and Cocktail Reception for conference attendees (Thursday, August 18th at 4:50 p.m.).

The Conference also features an optional paid lunch with Tammy H. Scheidegger, Ph.D. According to Dr. Sheidegger, while “having it all” seems to go hand-in-hand with being “successful,” research on happiness, and the emerging science of neuro-counseling, is shifting the happiness paradigm and providing a clear roadmap for how “having enough” is actually the way to balance all aspects of one’s life.

Watch for live updates on Twitter at the #2016HLE conference from Daniel Finerty (@DanielFinerty). A full schedule and registration information is available at

Lindner & Marsack, S.C. has represented management exclusively in all facets of labor, employment, employee benefits and workplace injury defense law since 1908.  Call Tom, Laurie or Daniel at (414) 273-3910 regarding any of their #2016HLE topics, or visit to learn more about the firm and how our experienced and innovative attorneys can help your business.

NLRB Expands Appropriate Bargaining Unit to Include Temporary Workers

In a 3-1 decision issued this week, the National Labor Relations Board (“Board”) reversed current precedent that prohibited the inclusion of temporary employees along with permanent, or “solely employed,” employees in a bargaining unit absent employer consent, as it returned to the previous standard under M.B. Sturgis, Inc., 331 NLRB 1298 (2000), where no such consent was required.

In its July 11, 2016 decision, Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board expressly overruled the 2004 decision of Oakwood Care Center, 343 NLRB 659 (2004), which had held that the National Labor Relations Act (“NLRA”) did not authorize the Board to direct elections in units encompassing employees of more than one employer, i.e. a company’s employees and other employees placed at the company via a staffing agency.  The Oakwood Board further held that combining such employees would lead to significant conflicts among the various employers and among groups of employees.

With the Miller & Anderson decision, the Board reversed course again, holding that the terms “employer” and “employer unit,” as used within Section 9(b) of the NLRA, were sufficiently broad to encompass temporary employees performing work for another employer.  The Board also reasoned that the Sturgis standard better effectuated the purposes of the NLRA.

Going forward, the Board will apply the traditional “community of interest” factors when determining if a bargaining unit is appropriate.  The Board will determine whether the temporary employees and solely employed employees have the same or substantially similar interests as to wages, hours or other working conditions.

While the Board described its decision as a return to Sturgis, the landscape has changed since 2004, when Sturgis was last the standard.  Last year, the Board issued the highly contentious Browning-Ferris decision, which overruled two other long-standing joint-employer decisions.

Under Browning-Ferris, the Board greatly expanded the joint-employment standard by abandoning the requirement that an employer exercise “direct and immediate” control over an employee’s terms and conditions of employment and instead including relationships where an employer merely exercised “indirect” control or even where an employer has simply reserved the authority to exercise control.   Thus, between 2000 and 2004, when Sturgis was the standard, the law was much clearer as to when a joint-employer relationship existed.  Now those waters are far murkier, and employers will have to navigate them to make best judgments as to whether a joint-employer relationship exists and, if so, whether a group of temporary employees and solely employed employees have sufficient interests in common in order to create an appropriate bargaining unit.

Employers and other amici cautioned that a return to Sturgis would create confusion and hinder meaningful bargaining.  We will see whether those concerns bear out.