Category Archives: Court Decisions & Legislation

ILLINOIS GOVERNOR TO SIGN LEGISLATION PROVIDING MANDATORY PAID LEAVE FOR ALL WORKERS

February 27, 2023

By: Sally Piefer and Alexandra (Sasha) Chepov

On January 10, 2023, both houses of the Illinois legislature passed the Paid Leave for All Workers Act (the “Act”), which requires private employers to provide a minimum of 40 hours of paid leave for employees to use for any reason. Governor Pritzker has indicated that he will pass the Act. Therefore, Illinois employers should take all necessary actions to ensure that their policies and practices are compliant with the requirements imposed by the new law prior to the Act’s effective date, January 1, 2024.

Covered Employees:

The Act applies to all employees who work in the State of Illinois. However, the Act does not apply to employees who are covered by a collective bargaining agreement and work in the construction industry or for an employer that provides services nationally and internationally of delivery, pickup, and transportation of parcels, documents and freight.

Covered Employers:

Any employer who employs at least one employee in the State of Illinois is subject to the requirements of the Act. However, the Act does not apply to any employer that is covered by a municipal or county ordinance, which is in effect on the effective date of the Act, that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Employers in municipalities or counties that enact or amend a local ordinance that provides paid leave, including paid sick leave, after the effective date of this Act must only comply with the local ordinance or other ordinance as long as the benefits, rights and remedies are greater than or equal to that afforded under the Act.

Paid Leave:

The Act requires all employers to provide and allow their employees to use and take a minimum of 40 hours of paid leave during a 12-month period. The 12-month period may be any consecutive 12-month period designated by the employer in writing at the time of an employee’s hire or the time the employer implements a policy consistent with the Act’s requirements.

The Act provides two methods by which an employer can offer its employees paid leave. If an employer accrues leave under the Act, the leave accrues at a rate of 1 hour of paid leave for every 40 hours worked up to a minimum of 40 hours. Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act are deemed to have worked 40 hours each workweek for purposes of paid leave accrual. An employee who earns paid leave under the Act on an accrual basis begins to accrue leave at the commencement of their employment or on the effective date of this Act, January 1, 2024, whichever is later.

Employers also have the option of offering their employees a minimum of 40 hours of paid leave at an employee’s time of hire or the first day of the 12-month period.

An employee may take paid leave under the Act for any reason of the employee’s choosing and is not required to provide their employer with a reason for leave. Paid leave under the Act must be provided upon on the oral or written request of an employee in accordance with the employer’s reasonable paid leave policy notification requirements which may include the following:

  • When use of paid leave is foreseeable, employers may require the employee to provide 7 calendar days’ notice before the date the leave is expected to begin.
  • When use of paid leave is not foreseeable, the employee is required to provide such notice as soon as is practicable after the employee is aware of the necessity of leave.

The Act provides that employers who require notice of paid leave under the Act when the leave is not foreseeable must provide a written policy that contains procedures for employees to provide notice. Employers are prohibited from denying the use of leave to an employee because of noncompliance with an employer’s leave notification policies, unless the employer has provided a written copy of its notification policy to the employee. The Act further provides that an employee may not be required to provide documentation or certification as proof or in support of the leave. An employee may also choose whether to use paid leave provided under this Act prior to using any other leave provided by the employer or state law.  Employees may not be required to search for or find a replacement worker to cover the hours which the employee takes paid leave.

Unlawful Retaliation:

Under the Act, it is unlawful for any employer to threaten or take any adverse action against an employee because the employee:

  • Exercises rights or attempts to exercise rights under the Act,
  • Opposes practices which the employee believes to be in violation of the Act, or
  • Supports the exercise of rights of another under the Act.

Further, the Act provides that it is unlawful for employers to consider the use of paid leave by an employee as a negative factor in any employment action that involves evaluating, promoting, disciplining or counting paid leave under a no-fault attendance policy.

Employees who believe that they have been unlawfully retaliated against are entitled to file a claim with the Department and may recover all legal and equitable relief as may be deemed appropriate.

Takeaway:

Many employers already have leave policies. Paid leave under this Act is not intended to be charged or otherwise credited to an employee’s paid time off bank or employee account unless the employer’s policy permits such a credit. However, employers should be cautious if they do so, because this could inadvertently result in having to pay any unused paid leave to an employee upon their separation to the same extent as vacation time under existing Illinois law must be paid.

The extent to which employers subject to the Act’s requirements must modify their existing policy will undoubtedly vary. Employers should ensure that management is informed and appropriately trained on the Act’s requirements, and should ensure that their policies and procedures are compliant with the Act’s provision prior to January 1, 2024.

If you have questions about this material or require assistance in reviewing and updating your policies, please contact Sally Piefer by email at spiefer@lindner-marsack.com or Alexandra (Sasha) Chepov by email at achepov@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

EXPANDED PROTECTIONS FOR PREGNANT AND NURSING EMPLOYEES

January 9, 2023

By: Samantha J. Wood

On December 29, 2022, President Biden signed into law an omnibus appropriations bill, which expands protections for pregnant and nursing employees under The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.

The Pregnant Workers Fairness Act

 The PWFA, which goes into effect in June 2023, extends the protections for pregnant workers in the same manner as is available under the Americans with Disabilities Act (ADA).  Specifically, the new law requires employers with 15 or more employees to provide reasonable accommodations for pregnant employees and prohibits employment practices that discriminate against qualified employees affected by pregnancy, childbirth, or related medical conditions.  The Act makes it unlawful to take any of the following adverse actions:

  • Refuse to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such accommodation would impose an undue hardship on the operation of the business;
  • Require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process;
  • Deny employment opportunities to the employee if such denial is based on the need to make reasonable accommodations;
  • Require the employee to take paid or unpaid leave if another reasonable accommodation can be provided that would enable the employee to continue working; or
  • Take an adverse employment action against the employee because the employee requested or used a reasonable accommodation.

Although pregnancy accommodation requirements have been recognized since 2015 pursuant to the U.S. Supreme Court’s decision in Young v. UPS, 575 U.S. 206 (2015), that decision only required employers to accommodate pregnant workers in the same manner as it accommodated other similarly situated non-pregnant employees.  Therefore, if an employer did not accommodate employees with temporary conditions, it did not have to accommodate pregnancy-related limitations under federal law.  The PWFA takes this decision one step further by requiring employers to accommodate pregnant employees irrespective of what the employer does for employees affected by other temporary conditions.  Under the PWFA, pregnant workers will be entitled to accommodations regardless of whether similarly situated non-pregnant workers were given accommodations.

Further, the PWFA provides that employees may seek enforcement and relief under this Act in the same manner as pregnancy discrimination claims under Title VII of the Civil Rights Act.  In the coming months, the Equal Employment Opportunity Commission (EEOC) is expected to adopt rules providing examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth and related medical conditions.

Providing Urgent Maternal Protections for Nursing Mothers Act

 The PUMP Act, which went into effect on December 29, 2022, expands workplace protections for employees who need to express breast milk following the birth of a child.  Since 2010, federal law has required that employers provide non-exempt employees with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child.  Employers with less than 50 employees are exempt from this requirement if it would impose an undue hardship on their business.

The PUMP Act expands the 2010 requirements by requiring that employers provide reasonable break time and a private place (other than a bathroom) to express breast milk to both exempt and non-exempt employees.  The break time may remain unpaid, unless the employee is not completely relieved from duty during the entirety of the break.

The PUMP Act further provides that before commencing an action against an employer, the employee must notify the employer of its non-compliance.  The employer then has up to ten (10) days to come into compliance with the required accommodations.

Employers should ensure management is notified and appropriately trained on these changes, and should also ensure that their policies and procedures are updated and in compliance with these new laws. We will continue to monitor the EEOC’s issuance of rules relating to the PWFA and will provide updates when those rules have been made available.

If you have questions about this material, please contact Samantha J. Wood by email at swood@lindner-marsack.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.

OSHA’s VACCINE OR TEST RULE REMAINS IN LIMBO FOLLOWING ARGUMENTS BEFORE THE U.S. SUPREME COURT

By Sally A. Piefer

As you know, in early November, OSHA announced an emergency temporary standard (“ETS”) which affects employers with 100 or more employees. The ETS directs these covered employers to develop, implement, and enforce a written mandatory COVID-19 vaccination policy—or to adopt a written policy requiring employees to either choose to be vaccinated or to be tested regularly and wear a face covering at work.

The ETS was immediately challenged, and within a few days, the ETS was halted nation-wide by the 5th Circuit Court of Appeals. Additional lawsuits were filed across the country in an effort to gain an advantage over which federal Circuit Court would ultimately determine the ETS’ validity. The 6th Circuit Court of Appeals was selected in the lottery, and many believed the ETS might not survive the legal challenges, because the 6th Circuit was largely made up of Republican-appointees.

In mid-December, the 6th Circuit decided to lift the 5th Circuit’s Order preventing the ETS from taking effect. The Court’s decision resulted in an immediate appeal to the U.S. Supreme Court. OSHA pressed forward and adjusted its enforcement dates, saying that it would not issue citations for noncompliance with any documentation requirements before January 10, 2022 and would not issue citations for noncompliance with the testing requirements before February 9, 2022.

This morning, the U.S. Supreme Court heard oral argument on whether the ETS should be stayed pending resolution of the legality of the rule by the 6th Circuit. This morning’s hearing has not resulted in a decision, and ongoing questions loom on whether the ETS will take effect on Monday. A number of the Justices appeared to be in favor of a short stay until a decision could be made by the high court. Several historically conservative Justices appeared to be in favor of the ETS and appeared not likely to favor a long-term stay. The Justices gave no indication when they would issue a decision, but the decision will likely signal the high court’s view of the underlying merits of the case.

Our impression is that this will be a close call. We anticipate that Justices Thomas, Kagan, Breyer and Sotomayor will not be inclined to favor a stay, and these justices focused a number of their comments and questions on the widespread nature of the Omicron variant. Justices Roberts, Barret and Gorsuch appeared to question OSHA’s authority and seemed inclined to favor of a stay. It is unclear how Justices Cavanaugh and Alito will side, based on their comments and questions this morning.

We encourage employers to continue to prepare as if the ETS will become effective on Monday, January 10, 2022. This means you need to continue to take the following steps:

  • Create a policy on vaccination or testing with mask wearing
  • If you will offer employees the option of weekly testing, decide who will bear the cost for testing, and provide employees with paid time off to get vaccinated and to recover from the side effects of the vaccine
  • Ascertain the vaccination status of each employee and obtain acceptable written proof of vaccination
  • Maintain records of the vaccination status for each employee
  • Provide materials encouraging vaccination to your employees and provide information about the ETS
  • Ensure that all employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes—and enforce this requirement
  • Require employees to immediately provide notice of a positive COVID-19 test or diagnosis and ensure that any employee with a positive test is removed from the workplace pursuant to CDC guidelines
  • Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related in-patient hospitalizations within 24 hours
  • Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

If you have questions or need assistance with policy development, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new directives, rules, or guidance.

Update on OSHA’s Mandatory Vaccine Rule: What Should Employers Do?

By Sally A. Piefer

November 23, 2021

As we previously reported, on November 4th, OSHA released its emergency temporary standard (“ETS”) which requires employers with 100 or more employees to develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work.

The ETS gave employers until December 5, 2021 to do the following:

  • Develop a written vaccination and/or testing policy.
  • Determine which employees are vaccinated and collect documentation from employees who are vaccinated.
  • Develop educational materials to provide to employees covering (i) requirements of the ETS and its workplace policies; (ii) a copy of the CDC’s Key Things to Know About COVID-19 Vaccines; (iii) information prohibiting retaliation and discrimination; and (iv) information discussing criminal penalties for intentionally providing false information or documentation.

The testing and masking requirements were set to be implemented on January 4, 2022.

Almost immediately, a number of lawsuits were filed by employer groups across the nation seeking to invalidate the ETS, and shortly thereafter a number of labor unions and employee groups began filing similar lawsuits in employee friendly jurisdictions. All of those petitions have been consolidated in and will be decided by the Sixth Circuit Court of Appeals. Before the Sixth Circuit assumed jurisdiction of the cases, the Fifth Circuit Court of Appeals, a notably employer-friendly jurisdiction (or court), granted a Motion to Stay Enforcement of the ETS, finding the ETS overbroad. Several days later, OSHA posted on its website that it was suspending enforcement of the ETS “pending further developments in the litigation.”

This morning, the Biden Administration filed an Emergency Motion asking the Sixth Circuit to Dissolve the Stay issued by the Fifth Circuit. While it is still too soon to speculate how the Sixth Circuit will rule in response to the current Motion, many clients are asking what they should do since the ETS appears to be in legal limbo.

What should employers do while the ETS is in limbo? Even though the ETS has presently been paused, employers are encouraged to continue with their efforts to implement the ETS in the event the Sixth Circuit lifts the Stay. In such event, it is presently unclear how quickly OSHA may try to enforce the December 5 deadline. In addition, it would be wise for employers to keep employees informed about the process so that if the ETS is enforced, an employer can quickly move to get into compliance.

Employers should also be aware that the current proceedings in the Sixth Circuit do not impact the Executive Order 14042 mandating vaccines for certain covered government contractors and subcontractors, the vaccine mandate from the Centers for Medicare & Medicaid Services (CMS) for healthcare employers, or any state or local vaccination mandate or testing requirements.

If you have questions about this new development or about your obligations under any vaccine mandate or testing requirements, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new developments and how they will impact your business.

 

 

 

WISCONSIN SUPREME COURT STRIKES DOWN STATEWIDE MASK MANDATE

By: Samantha J. Wood and Sally A. Piefer

On Wednesday, the Wisconsin Supreme Court struck down Wisconsin’s statewide mask mandate, holding that Governor Evers exceeded his legal authority by issuing multiple emergency orders under Wis. Stat. § 323.10.   The court emphasized that the question was “not whether the Governor acted wisely; it [was] whether he acted lawfully.”  Section 323.10 specifies that no state of emergency may last longer than 60 days unless “the state of emergency is extended by joint resolution of the legislature.”  Absent legislative approval, the Governor is precluded from proclaiming repeated states of emergency.  Because Governor Evers extended the orders declaring a state of emergency on several occasions without legislative approval, his extensions were and are invalid.

Although Wisconsin’s statewide mask mandate has been struck down by virtue of the Supreme Court’s decision, employers must keep several other laws in mind in determining their next steps:

  1. Several municipalities have issued their own mask mandates, including Dane County, Milwaukee County, the City of Milwaukee, Wauwatosa and various other townships and villages. These mandates are enforceable if enacted by the municipality’s governing body. Employers should check with their local municipality and county before eliminating a mask requirement.
  1. Employers still maintain responsibilities under OSHA’s “General Duty” clause. OSHA’s General Duty clause requires an employer to furnish to its employees employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.  Employers can be cited for a violation of the General Duty clause if a recognized hazard exists in the workplace and the employer does not take reasonable steps to prevent or abate the hazard. OSHA prepared guidance in March 2021 that encourages employers to require face coverings. That guidance can be found here.
  1. Employees may be eligible to receive worker’s compensation benefits as a result of contracting COVID-19 in the workplace if the employee can establish that the employee contracted the virus while performing services growing out of and incidental to that employment.

In determining whether to lift an employment mask requirement or policy, employers should consider the above-referenced legal considerations, as well as analyze the risks in their workplace, other sanitization or safety procedures in place, and whether, if a mask requirement will remain in place, the employer will consistently enforce a mask policy and issue corrective action to employees who violate the policy.

COURT ISSUES TEMPORARY RESTRAINING ORDER PREVENTING WISCONSIN GOVERNOR FROM RELEASING NAMES OF BUSINESSES EXPERIENCING COVID CASES

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By Sally Piefer

Yesterday we reported that, despite repeated requests from the Wisconsin Manufacturers & Commerce (WMC), Wisconsin’s Governor Evers was set to release to the public the names of Wisconsin businesses who have had at least 2 employees test positive for COVID. The release of business names was scheduled for Friday, October 2, 2020.

Yesterday, the WMC, along with two other local Chambers of Commerce, filed a lawsuit in Waukesha County Court on the issue. The WMC and the Chambers also sought a temporary restraining order (TRO), asking the Court to immediately prevent the Governor’s office from taking the proposed action.

The Waukesha County judge granted the TRO request late on Thursday afternoon. The Order reads:

Upon the motion of Plaintiffs Wisconsin Manufacturers and Commerce, Muskego Area Chamber of Commerce, and New Berlin Chamber of Commerce and Visitors Bureau, pursuant to Wis. Stat. § 813.025 and for good cause shown;

It is hereby Ordered that Defendants Tony Evers, Andrea Palm, and Joel Brennan, and their officers, agents, and employees (collectively referred to as “Defendants”), are temporarily restrained from releasing any information relating to businesses whose employees have tested positive for COVID-19 or who contract tracing has shown close connections.

This Order shall remain in effect for 5 days unless extended after notice and hearing.

The Court will likely be scheduling a hearing on the request for a preliminary injunction either next week or the week after. Typically, TRO’s can be in effect for up to 5 days, unless extended by agreement of the parties. We will continue to keep you abreast of further developments on this issue. Should you have any questions, please feel free to contact Sally Piefer or your normal contact at Lindner & Marsack.

SEVENTH CIRCUIT ISSUES ADA REASSIGNMENT GUIDANCE

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By: Kristofor L. Hanson & Christopher J. Saugstad

November 25, 2019

The Seventh Circuit Court of Appeals recently clarified its position concerning reassignment as an accommodation under the Americans with Disabilities Act (the “ADA”). Under the ADA, employers have an affirmative duty to reasonably accommodate an employee’s disability. While engaging in the interactive process to find a reasonable accommodation, in situations where an employee is unable to perform the essential functions of his or her job even with reasonable accommodations, employers are required to evaluate reassignment to a vacant position as an accommodation. Previously, in EEOC v. United Airlines, Inc., 693 F.3d 760, 764 (7th Cir. 2012), the Seventh Circuit explained that the ADA requires employers to appoint disabled employees to vacant positions for which the employee is minimally qualified, unless the reassignment would pose an undue hardship to the employer or there is a bona fide seniority system in place. Pursuant to this decision, employers cannot force the disabled employee to go through a competitive process to be placed into a vacant position as a reasonable accommodation.

On November 15, 2019, the Seventh Circuit revisited the issue of reassignment under the ADA in Ford v. Marion Cty. Sheriff’s Office, No. 18-3217, 2019 U.S. App. LEXIS 34072, (7th Cir. Nov. 15, 2019). Ford worked as a deputy at the county sheriff’s office until her hand was seriously injured in a car accident while on duty. Ford was reassigned to light duty for about a year until she accepted a position as a jail visitation clerk; Ford was given the option to accept the visitation position, resign, or be fired. After Ford’s reassignment, she alleged she suffered disability-based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials. Ford brought an action against Marion County for violations under the ADA.

The Seventh Circuit found the district court properly granted summary judgment on Ford’s claim regarding reassignment to the visitation clerk position and explained a “demotion can be a reasonable accommodation when the employer cannot accommodate the disabled employee in her current or prior jobs or an equivalent position.” The Court pointed out EEOC guidance regarding reassignment and demotion states: “An employer may reassign an individual to a lower graded position if … there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”

The Court noted that if there had been a vacant position that more closely matched Ford’s previous position, under the ADA, Marion County would have been obligated to reassign her to that position.

Significantly, the Seventh Circuit suggested that Marion County, as the employer, had an obligation to “to canvass available positions and, if a vacant job existed that Ford was qualified to perform with or without reasonable accommodations, to offer it to her.” Employers should review their current process regarding reassignment as a potential reasonable accommodation. Once reassignment becomes a potential accommodation, employers should actively canvas their current vacancies in relation to the disabled employee’s qualifications. If there is a match, the employee should be offered the job. Merely inviting employees, without any employer assistance, to apply for any vacant positions for which they think they may be qualified is insufficient.

Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about the ADA, reasonable accommodation and the possibility of reassignment, or any other labor or employment issue involving your business, please contact us at any time.

SUPREME COURT LIMITS USE OF CLASS ACTION ARBITRATIONS

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By:  Alan M. Levy

On April 24, 2019 the United States Supreme Court held that an employee cannot expand an individual claim to a class action arbitration unless both parties have explicitly agreed to that process.  Arbitration is created by contract; the parties must agree to waive their statutory right to have a court determine whether their employment contract or other relationship terms were breached.

In recent years the courts have held that an employee who is not subject to a union contract can be required to arbitrate a personal dispute pursuant to an employment contract, acceptance of a company rule, or other form of agreement instead of taking their claim to a court or to an agency such as the EEOC.  At the same time, some employee claims have been presented on a class-wide basis, the complainant arguing that a significant number of fellow employees all had the same issue, such as the method for calculating overtime or obtaining a promotion.  These complainants often argued that individual arbitrations were not economically viable for employees, and that the same remedy should apply to all similarly situated employees.  What had been described as a speedy, inexpensive dispute-resolution process through arbitration for individuals could become a full-scale class action lawsuit if the single employee could expand the potential remedy this way.

In Lamps Plus, Inc. v. Varela, the United States Supreme Court held 5-4 that claims by individual employees could not be expanded into class arbitrations unless the arbitration agreement (typically in the person’s employment contract) specifically provided that the larger process was permissible.  The Court found that the shift from individual to class arbitration was such a “fundamental change” that it “sacrifices the principal advantage of arbitration” and “greatly increases risks to defendants.”

The employee had argued that the parties’ agreement to arbitrate was ambiguous and any choice of process possible under that ambiguity should be interpreted against its author – the party that had drafted the (employment) agreement requiring arbitration to the exclusion of court or agency actions.  Chief Justice Roberts stated for the majority that “Arbitration is strictly a matter of consent,” and an affirmative agreement to both the subject-matter and the procedure for arbitration is necessary to require use of that process.  A class arbitration is fundamentally different from the individualized form envisioned in the Federal Arbitration Act; class arbitration “sacrifices the principal advantage of arbitration—its informality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.”  Use of this process requires an affirmative “contractual basis for concluding that the party agreed to do so,” and silence or ambiguity in the language of the underlying agreement to arbitrate cannot be taken as that affirmative consent to this expanded process.

This decision reiterates the contractual basis and limits of arbitration.  Waiving the right to court or agency decision-making and accepting the determination of a private arbitrator require the affirmative consent of a clear contract to do so.

Should you have any questions about the elements of a binding arbitration agreement, its implementation, and its scope, please contact one of the attorneys here at Lindner & Marsack, S.C.

EMPLOYEE NOT ENTITLED TO FURTHER WORKER’S COMPENSATION BENEFITS BECAUSE HER DISABILITY-CAUSING SURGERY WAS NOT RELATED TO A COMPENSABLE WORK INJURY

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By:      Daniel M. Pedriana and Claudia R. Harke

On August 28, 2018, District I of the Wisconsin Court of Appeals held that the Plaintiff was not entitled to further worker’s compensation benefits because her disability-causing surgery was not related to a compensable work injury.

In Theresa Payton-Myrick v. LIRC, Theresa Payton-Myrick was diagnosed with arthritic changes and degenerative disc disease in her spine. Payton-Myrick was employed as an administrative assistant at the University of Wisconsin-Milwaukee. On July 21, 2009, she fell out of her desk chair and sustained several muscle strains. She subsequently received opinions from several doctors, one of whom recommended a spinal fusion surgery.

Despite conflicting medical opinions, Payton-Myrick underwent surgery, which resulted in multiple procedures and left her “arguably disabled.” Payton-Myrick applied for worker’s compensation benefits. The UW System denied her benefits, which caused Payton-Myrick to file a worker’s compensation claim.

An administrative law judge concluded that Payton-Myrick had “suffered a work-related injury that aggravated Payton-Myrick’s back condition beyond its normal progression” and that “the treatment, including surgery, was necessary and reasonable.”

The Labor and Industry Review Commission (“LIRC”) reversed the ALJ and found that Payton-Myrick’s muscle strains were from a compensable work injury, however, the work injury had healed and did not aggravate her pre-existing condition enough to necessitate surgery. LIRC also made several factual findings including that Payton-Myrick’s disability causing surgeries treated her pre-existing condition, not her compensable work injury.

The Court of Appeals upheld LIRC’s denial of further benefits based on a holding from the Wisconsin Supreme Court in Flug v. LIRC. In Flug, the Supreme Court ruled that Wis. Stat. § 102.42(1m), which states that if an employee who has sustained a compensable injury undertakes treatment in good faith that is medically acceptable, but unnecessary, the employer shall pay for all disability incurred as a result, only applies if the unnecessary, but acceptable surgery is to address the workplace injury.

Since LIRC made a factual finding that Payton-Myrick’s two spinal surgeries were focused on her pre-existing disc problems, not the workplace injury, the Court of Appeals upheld LIRC’s denial of further benefits.

This Decision does not drastically change the law surrounding whether an employee is entitled to further worker’s compensation benefits, however, it reinforces that Wis. Stat. § 102.42(1m) only applies if the unnecessary-but-acceptable surgery was done to address the workplace injury. However, it will be important to have treating and independent doctors specifically note the reason for an employee undergoing an unnecessary-but-acceptable surgery, as that will determine whether they are owed additional benefits.

The time to appeal this decision has passed and the decision remains unpublished.

If you have questions about this decision, please contact Daniel M. Pedriana by email at dpedriana@lindner-marsack.com or Claudia R. Harke by email at charke@lindner-marsack.com or any other attorney with whom you have been working with at Lindner & Marsack, S.C.

SUPREME COURT UPHOLDS USE OF CLASS ACTION WAIVERS

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By:  Jenna K. Leslie

Yesterday, the Supreme Court of the United States issued a significant victory for employers when ruling that class and collective action waivers in employment arbitration agreements are fully enforceable under the Federal Arbitration Act (FAA) and do not violate an employee’s rights under the National Labor Relations Act (NLRA).

In Epic Systems Corp. v. Lewis (a companion case to National Labor Relations Board v. Murphy Oil USA and Ernst & Young LLP v. Morris), the high court issued a 5-4 decision upholding the validity of class action waivers in arbitration agreements.  Justice Neil Gorsuch, writing the majority opinion, explained that the FAA unequivocally requires federal courts to enforce arbitration agreements according to their terms, and nothing in the NLRA, which was enacted after the FAA, was intended to negate that requirement.  The opinion specifically found that Section 7 of the NLRA focuses on an employee’s right to organize and bargain collectively, but it does not create a right to pursue class or collective action lawsuits.

Writing for the dissent, Justice Ruth Bader Ginsburg called the majority opinion “egregiously wrong” and argued that the NLRA was intended to equalize the power imbalance in most employment relationships by allowing employees to band together through collective action to improve the terms and conditions of their employment.  The majority opinion rejected this notion, concluding that there is nothing in the NLRA that suggests a clear intention to displace the provisions of the FAA.

In recent years, employees have effectively used class and collective action procedures to bring massive wage and hour claims in both state and federal court.  This decision will curb those lawsuits and allow employers to rely on the enforceability of class and collective action waivers and arbitration provisions within their employment agreements.  Class and collective action waivers are useful tools used to preserve confidentiality, resolve claims more quickly, and limit potential exposure to collective action lawsuits.

This decision is said to affect at least 25 million existing employment agreements.  Employers should review their employment arbitration agreements carefully to determine which agreements are affected by this decision.  Employers should also consider whether it makes sense to implement such agreements prospectively, as the decision paves the way for employers to include class and collective action waivers in future employment agreements.

If you have questions about this material, please contact Jenna K. Leslie or  any other attorney you have been working with at Lindner & Marsack, S.C.

We look forward to seeing many of you tomorrow at our 2018 Annual Compliance/Best Practices seminar held at the Sheraton Hotel in Brookfield, Wisconsin.