Category Archives: Wisconsin

LINDNER & MARSACK, S.C. WELCOMES DAVID KEATING TO TEAM

Lindner & Marsack, S.C. is pleased to announce the hire of Attorney David Keating.

Keating comes to Lindner& Marsack with significant experience advising clients in the long-term care industry. He served as Chief Legal Officer and Secretary for Fortis Management Group, LLC, where he provided legal advice and assistance on issues relating to resident care, regulatory compliance, reimbursement, fraud and abuse, human resources, labor relations, transactions and other areas affecting client operations. Prior to that, he held several positions over more than a decade with Extendicare Health Services, Inc., eventually serving as that organization’s Vice President and General Counsel.

“David has proven experience navigating complex legal challenges in an industry that is rapidly evolving and significant among Lindner & Marsack’s client portfolio, which will be a great asset to our clients in healthcare and beyond,” said Thomas Mackenzie, Firm President.

Keating is a member of the State Bar of Wisconsin, the American Bar Association and the Legal Committee of the American Health Care Association. He received his J.D. from the Widener University School of Law in Wilmington, Delaware, in 1995.  He also earned a Master of Labor and Industrial Relations from Michigan State University in 1992 and a Bachelor of Arts in Labor and Industrial Relations and Political Science from Pennsylvania State University in 1991.

“Lindner & Marsack’s long history and excellent reputation as a top-tier, management-side labor and employment law firm, along with the firm’s growth in the healthcare sector, make this a great fit,” says Keating. “As a member of the Lindner & Marsack team, I look forward to serving clients in a way that exceeds expectations and delivers proactive, legally-sound strategies and solutions.”

REGISTER NOW! ANNUAL COMPLIANCE/BEST PRACTICES REVIEW

WHEN: May 23, 2018

8:00 a.m. – 12:00 p.m.

WHERE: Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

This COMPLIMENTARY half-day event will address the latest labor and employment topics impacting employers including:

  • Legal Updates – Labor, Employment and Worker’s Compensation
  • In Search of the Truth for Workplace Investigations: What are the Legal Pitfalls?
  • The Role of Human Resources in Protecting Company Information Before, During and After the Employment Relationship
  • Best and Worst Practices: Common Corporate, HR and Employment Policies that Hinder Employers’ Work Comp Claims and Create FMLA and Disability Law Nightmares
  • Stump the Chumps: Our panel of experts will address all of your burning employment questions

2018 Worker’s Compensation Gamble

Lindner & Marsack’s worker’s compensation defense practice is well recognized as an industry leader in providing work injury defense services to many of Wisconsin’s largest employers and insurance carriers.

Doug Feldman heads the Firm’s highly regarded work injury defense team and is a founding Board Member and current President of Kids’ Chance of Wisconsin.  Kids’ Chance is a non-profit organization that provides college scholarships to children of seriously injured workers in Wisconsin.

Kids’ Chance of Wisconsin is presenting a complimentary half-day worker’s compensation seminar on March 8, 2018 at Potawatomi Hotel and Casino, followed by a networking cocktail hour and raffle.  This year’s conference will focus on the opiate crisis in this country and its impact on workers compensation claims.  Funds raised at the event will directly support the Kids’ Chance mission of providing financial support, in the form of scholarships, to children of parents who have been seriously injured at work.

We encourage you to attend this dynamic and thought provoking conference. If you are interested in attending this event, click Kids’ Chance of WI – Here’s The Deal Seminar – March 8, 2018 for more information.

Lindner & Marsack owes much of its success to its good friends and clients in Wisconsin and is proud to support this worthy endeavor and give back to the community in such a meaningful way. We hope you will consider joining us for this educational opportunity.

 

Employers Who Utilize Temporary Or Loaned Employees Are Now Potentially Liable For Third Party Claims Brought By An Injured Employee

By:  Daniel Pedriana, Joseph Birdsall and Claudia Harke

On January 9, 2018, District III of the Wisconsin Court of Appeals decided that Wis. Stat. § 102.29(6)(b)1 allows an injured temporary employee to choose between filing a worker’s compensation claim and suing the temporary employer for tort damages.

In Rivera v. West Bend Mutual, Carlos Rivera and two other individuals died in a single-vehicle accident. Rivera was survived by five children, two of whom were minors at the time of his death. At the time of the accident, Rivera was a passenger in a vehicle owned by Alpine and insured by West Bend. Rivera was employed by Alex Drywall, which, in turn, had provided him to perform work for Alpine. Alpine paid Alex Drywall for Rivera’s services and Alex Drywall paid Rivera for his work.

In February 2016, Rivera’s two minor children and the special administrator of Rivera’s estate commenced a wrongful death lawsuit against Alpine and West Bend. The Estate had not filed a claim for worker’s compensation under the Act. A Milwaukee County Circuit court judge granted summary judgment for Alpine and West Bend, concluding that because Rivera was an employee of a temporary help agency (Alex Drywall), the Estate was prohibited from bringing a tort action against Alpine.

On appeal, the Wisconsin Court of Appeals reversed the circuit court, ruling that the exclusive remedy provision of the Worker’s Compensation Act does not bar a temporary employee from bringing tort claims against a third party.  The Court found that Alex Drywall was Rivera’s employer, and therefore, the exclusive remedy provision prohibited the Estate from bringing a tort claim against Alex Drywall, but it did not prohibit the Estate from pursuing tort claims against Alpine and West Bend, which the Court found to be third parties in this case.

The Court concluded that Wis. Stat. § 102.29(6)(b)1 only bars tort claims from temporary employees who make claims for worker’s compensation. In this case, it was undisputed that the Estate had not made a worker’s compensation claim. As a result, the Estate was not barred from pursuing tort claims against Alpine and West Bend—the temporary employer and its insurer.  The Estate was still barred from suing Rivera’s primary employer, Alex Drywall, which the Court treated as a temporary help agency in this case.

The Rivera decision is significant because it exposes certain Wisconsin employers to tort liability that they were previously sheltered from. Under the Decision, if a temporary employee is injured, the temporary employee may pursue tort claims against the employer that they are placed with or they may file a worker’s compensation claim against their primary employer—the temporary employment agency.

Employers who compensate temporary employment agencies for the services of employees primarily employed by the temporary help agencies should be concerned about tort liability in the event of an injury. Even if other employers do not advertise themselves as temporary help agencies, they may fit the definition of temporary help agency under the statute like Alex Drywall did in the Rivera decision. Furthermore, the Rivera decision indicates that loaned employees under Wis. Stat. §102.29(7) produce the same tort liability as temporary employees who are primarily employed by a temporary help agency.

This decision is currently unpublished, but was recommended for publication by the Third District of the Wisconsin Court of Appeals. The parties have 30 days to file a petition for review to the Wisconsin Supreme Court. This 30 day period will expire on February 8, 2018. As of January 24, 2018, no petition has been filed.

If you have questions about this material, please contact Daniel M. Pedriana (dpedriana@lindner-marsack.com), Claudia R. Harke (charke@lindner-marsack.com), or Joseph D. Birdsall (jbirdsall@lindner-marsack.com) or any other Lindner & Marsack, S.C. attorney.

 

Wisconsin Supreme Court Declares that Non-Solicitation of Employee Provisions are Governed by the Same Wisconsin Statute that Addresses Non-Compete Provisions

By Oyvind Wistrom

The Wisconsin Supreme Court issued a landmark decision on Friday in the case of The Manitowoc Company, Inc. v. John Lanning, 2018 WI 6.  The case represented the Court’s first opportunity to determine whether a Non-Solicitation of Employee (NSE) provision in a contract between an employer and an employee is governed by the same statute, Wis. Stat. § 103.465, that governs the enforceability of non-compete restrictive covenants.  The majority of the Court concluded that NSE provisions are indeed governed by Wis. Stat. § 103.465, and then proceeded to find the NSE at issue overbroad and unenforceable because it restricted Lanning’s ability to engage in ordinary competition attendant to the free market.

The case involved the interpretation of a NSE provision signed by Lanning while he was previously employed by The Manitowoc Company, which prohibited him, for a period of two years following the termination of his employment, from soliciting, inducing or encouraging any employee of The Manitowoc Company to terminate his/her employment with The Manitowoc Company or to accept employment with a competitor, supplier or customer of The Manitowoc Company.  After separating from The Manitowoc Company, Lanning accepted employment with SANY, a competitor of The Manitowoc Company’s crane division.  It was alleged that he subsequently engaged in recruitment efforts in which he encouraged employees of The Manitowoc Company to accept employment with SANY.

The Circuit Court initially ruled in favor of The Manitowoc Company and awarded damages related to the alleged breach.  The Wisconsin Court of Appeals reversed and ruled in favor of Lanning, finding the NSE provision unenforceable under Wis. Stat. § 103.465 because it was broader than reasonably necessary to protect a legitimate business interest of The Manitowoc Company.  Specifically, the NSE was overbroad because it restricted Lanning from encouraging as many as 13,000 employees of The Manitowoc Company, many of whom worked in a different division of the company and with whom Lanning had no contact, to terminate their employment with The Manitowoc Company.

The majority of the Justices on the Wisconsin Supreme Court agreed and affirmed the decision of the Court of Appeals.  In so doing, the Court first concluded that Wis. Stat. § 103.465 governed the enforceability of NSE provisions.  The Court thus clarified that in order for a NSE provision to be enforceable under Wisconsin law, it must be (1) reasonably necessary for the protection of the employer; (2) provide a reasonable time period; (3) provide a reasonable territorial limit; (4) not be harsh or oppressive as to the employee; and (5) not be contrary to public policy.  The lead opinion of the Court concluded that the NSE at issue was not reasonably necessary to protect a legitimate interest of The Manitowoc Company.  In particular, as the restriction was worded, it prevented Lanning from encouraging any Manitowoc Company employee, no matter the employee’s job or location, to terminate his or her employment with Manitowoc for any reason, or soliciting any Manitowoc Company employee to take any position with any competitor, supplier or customer of The Manitowoc Company.  Without a specified territory or class of employees, the provision restricted Lanning’s conduct with respect to all employees of The Manitowoc Company everywhere.  The restriction was simply too broad for the Court to enforce.

The primary lesson to be learned from this case is that in order for a Non-Solicitation of Employee provision to be enforceable under Wisconsin law, the provision must be narrowly tailored to protect a legitimate business interest.  An employer does not have a protectable interest in restricting competition of the type that an ordinary stranger can provide.  For instance, while The Manitowoc Company’s NSE was extremely broad, a NSE that, for example, only prevents the recruitment or poaching of key employees with whom a former employee had contact for a specified period of time, may still be enforceable under Wisconsin law.  Even such a restriction must still be drafted in such a way as to ensure it satisfies all five statutory requirements outlined above.  Employers who utilize NSE provisions should review these provisions carefully with legal counsel to ensure they are compliant and enforceable under Wisconsin law.

For further information, or assistance in drafting or reviewing your restrictive covenants, please contact Attorney Oyvind Wistrom at (414) 273-3910 or via email at owistrom@lindner-marsack.com.  Mr. Wistrom was lead counsel in The Manitowoc Company case and successfully argued the case before the Wisconsin Supreme Court.

LINDNER & MARSACK, S.C. NAMES SALLY PIEFER AS EQUITY PARTNER

Lindner & Marsack, S.C., one of the region’s most respected and long-standing management-side labor and employment law firms, announced today the advancement of Sally Piefer to Equity Partner.

Piefer, who joined Lindner & Marsack in 2016, specializes broadly in all areas of employment law matters with special emphasis in employment litigation, employment counseling and compliance issues, and employee/supervisor training. Sally’s litigation practice has involved representing and defending employers in employment discrimination, wage & hour, FMLA, ADA, OSHA and unemployment compensation claims. In addition, she frequently drafts, advises clients and litigates claims involving non-competition, non-solicitation, confidentiality and duty of loyalty issues.

“In the short time Sally has been with Lindner & Marsack, she has become both a leader among our dedicated team of attorneys as well as an invaluable asset to our clients in providing counsel to help them address their toughest legal challenges,” said Thomas Mackenzie, Firm President.

Piefer received her JD from Marquette Law School in 1994. Before joining Lindner & Marsack, she led the employment law team at a small Waukesha area law firm for more than 17 years. Piefer has an AV rating from Martindale Hubbell, the highest possible. She has also received “Women in the Law” accolades from the Wisconsin Law Journal and special recognition from the Waukesha County Community Foundation’s Women of Distinction.

“No matter the issue or challenge facing a client, my main goal is to help employers operate in the most efficient, productive and cost-effective environment possible, says Piefer. “I take immense pride in working with clients to mitigate and manage risk, and helping them implement solutions that are proactive, practical and legally sound. Doing this work with the support of my colleagues at Lindner & Marsack just makes it that much more rewarding.”

 

WISCONSIN SUPREME COURT DEFINES “SUBSTANTIAL FAULT” STANDARD FOR UNEMPLOYMENT INSURANCE AND WORKER’S COMPENSATION MATTERS

By:  Daniel Finerty

On May 4, 2017, the Wisconsin Supreme Court released a long–awaited decision in Lela Operton vs. LIRC, 2017 WI 46, the first Supreme Court interpretation of Wisconsin’s “substantial fault” standard. Operton held that, as a matter of law, the employee’s eight accidental or careless cash-handling errors over the course of 80,000 cash-handling transactions during 21 months of employment were inadvertent and, therefore, met an exemption to the “substantial fault” standard. The substantial fault standard is used in unemployment insurance and worker’s compensation disputes.

Background

Operton worked for Walgreens in Madison until March 24, 2014, when she was terminated for the last of 8 separate errors when she failed to check identification during a customer’s $399.27 credit card purchase in violation of Walgreen’s policy. Because the credit card was later determined to have been stolen, Walgreens was out the $399.27. This error Operton made was not unlike the others she made during her 21 months of employment:

  • In October 2012, Operton received a verbal warning after she accepted a Women, Infants, and Children (WIC) check for $8.67 when the check should have been for $5.78, a mistake which costs Walgreens $2.89.
  • In February 2013, Operton received a written warning for two errors. First, she accepted a WIC check for $14.46, but did not get the customer’s signature on the check. In March 2013, she gave a $16.73 check back to a customer. Walgreens suffered losses of $14.46 and $16.73 as a result of these errors because it was unable to process these two checks.
  • A few months later, Operton took a WIC check for $27.63 before the date on which it was valid. Walgreens was unable to process the check, and Operton received a final written warning.
  • On January 1, 2014, Operton returned a WIC check for $84.95 back to a customer that the customer had tried to use to make a purchase, resulting in a loss of $84.95. Walgreens gave Operton the first of two final written warnings.
  • On January 29, 2014, Operton received the second final written warning (any additional cash-handling errors would lead to her termination) and served a two-day suspension after she accepted a check for $6.17 even though it was written for $6.00, thereby causing another loss. In addition, a customer attempted to pay for $9.26 worth of items but left the store without completing the debit transaction, which caused a second monetary loss that day of $9.26.

After hearing, an Appeal Tribunal found that Operton was disqualified from receiving unemployment insurance benefits because she was terminated for substantial fault, a finding the Labor and Industry Review Commission (Commission) affirmed, the Court of Appeals reversed the Commission’s finding. The Supreme Court accepted review.

Supreme Court Decision

The Supreme Court agreed with the Court of Appeals that the Commission had not provided a reasonable construction to support its conclusion that Operton was disqualified for “substantial fault,” defined by Wis. Stat. §108.04(5g) as:

For purposes of this paragraph, “substantial fault” includes those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee’s employer but does not include any of the following:

  1. One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction.
  2. One or more inadvertent errors made by the employee.
  3. Any failure of the employee to perform work because of insufficient skill, ability, or equipment.

While the Court conceded substantial fault existed because Operton exercised reasonable control over the cash handling transactions at issue and that Walgreens reasonably required her to handle such transactions, it ultimately found that the case turned on the Commission’s failure to examine the question of whether Operton’s errors constituted “one or more inadvertent errors,” which were exempt from the definition of substantial fault under (2.) above.

Examining that question, the Court found that Operton’s errors were not so egregious to warrant a conclusion that she behaved recklessly or intentionally but, instead, that her errors were inadvertent. While there was no testimony by Operton cited in support of its conclusion, the Court cited the length of her employment, the 80,000 transactions she processed, the period of time between errors and the fact that Operton was not making the same errors (even though they were similar in nature) in concluding the errors were inadvertent and, thus, outside of the definition of substantial fault. As further support for its conclusion, the Court cited the Commission’s finding that Operton had not been terminated for misconduct i.e., that there was no evidence Operton willfully disregarded her employer’s interests nor was she so careless or negligent as to be guilty of misconduct. Ultimately, the Court held that Operton’s 8 accidental or careless errors were, as a matter of law, “inadvertent errors” because the employee made these errors during a 21-month period during which she processed 80,000 cash-handling transactions and, therefore, substantial fault did not exists to deny benefits.

Analysis

The Court’s analysis to reach this result is rather interesting, especially considering its impact going forward. First, as a result of the Court’s numerical analysis, one must wonder at what level do employee errors cease being inadvertent and whether the answer to this question will have to remain for the next substantial fault dispute on which the Supreme Court grants review.

Second, the Court indication that an employer has the burden to establish substantial fault, while perhaps accurate, failed to allocate the burden of proof as to the substantial fault exceptions. In doing so, the Court’s opinion suggests that employers are responsible for proving a negative i.e., that the employee’s errors were not inadvertent. While proving this negative may be challenging, employers would be wise to gather statements and other evidence to show that an employee’s errors were not an accidental oversight or the result of carelessness will be critical going forward.

Third, with regard to the specific exception at Wis. Stat. §108.04(5g)(a)2, the Court held that, while discipline following errors may be dispositive in the application of Wis. Stat. §108.04(5g)(a)1 (“one or more minor infractions of rules [are not substantial fault] unless an infraction is repeated after the employer warns the employee about the infraction), an employer’s warning is not dispositive of whether the error was inadvertent. As such, while a prior warning may be relevant to this question, an employee who is warned about an inadvertent error is not necessarily terminated for substantial fault even if the employee subsequently makes another error, even the exact same error, for which s/he is terminated. As such, prior discipline will not carry the day on the “inadvertence” exception and employers must be prepared to address suggestions that an employee acted inadvertently by, again, showing any errors were not an accident or as a result of carelessness.

Conclusion

Operton shows that greater care may be required prior to hearing in order to determine whether any of the substantial fault exceptions may apply and what evidence can be presented to counter their application. It is likely that, going forward, Administrative Law Judges will question all parties about inadvertence, intent and related issues and employee-side counsel will be prepared to show inadvertence and highlight any facts which show a lack of any intent. Employers must be prepared to meet this evidence during an Appeal Tribunal hearing with preparation, testimony and documentary evidence.

If you have questions about Operton or unemployment insurance disputes or hearings, please contact Daniel Finerty or your Lindner & Marsack attorney at 414-273-3910.

Register Now! Annual Compliance/Best Practices Seminar

WHEN: May 11, 2017

8:00 a.m. – 12:00 p.m.

WHERE: Sheraton Milwaukee Brookfield Hotel

375 South Moorland Road

Brookfield, WI

Registration and a continental breakfast will be served beginning at 7:30 a.m.  Click here to register.

This COMPLIMENTARY half-day event will address the latest labor and employment topics impacting employers including:

  • Annual Employment Law Update (including recent developments in immigration, the Affordable Care Act and white collar overtime regulations)
  • Social Media Pitfalls and Best Practices
  • FMLA Update – A Best Practices Review
  • Drafting, Enforcing and Litigating Confidentiality, Non-Solicitation and Non-Competition Agreements
  • Navigating the ADA, FMLA and Worker’s Compensation

LINDNER & MARSACK, S.C. NAMES DANIEL FINERTY AS EQUITY PARTNER

Daniel-FinertyWe are pleased to announce the advancement of Daniel Finerty to Equity Partner.

Finerty joined Lindner & Marsack in 2012 and concentrates his legal practice on representing and counseling clients – including Wisconsin counties, cities, school districts, Native American tribes, tribally-owned businesses and private sector employers – in labor and employment litigation and compliance matters in front of administrative agencies; in federal, state and tribal courts; and in labor arbitration. He works across a broad spectrum of industries including senior living, healthcare, manufacturing, food manufacturing, hospitality, retail, transportation, construction, commercial laundry, dry cleaning and others.

“Since Dan joined our team, he has consistently and determinedly worked to provide an outstanding, cost-effective platform for both new and existing clients and their insurance partners to address their toughest legal challenges,” said Thomas Mackenzie, Firm President. “Clients trust and appreciate his commitment to helping manage their workforce and continued growth while always keeping an eye on costs.”

Finerty has a great deal of experience defending senior living providers in 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 follow termination of an employee for a violation of resident rights’ policies and other misconduct. He has also handled hundreds of employment claims involving Employment Practice Liability Insurance (EPLI) as panel counsel as well as at his clients’ request with a carrier’s permission and has defended Native American communities facing employment-related claims by current and former employees in tribal courts.

Rated AV Preeminent by Martindale Hubbell and recognized among the Best Lawyers in America in Appellate Practice since 2010, Finerty has also been regularly recognized by Wisconsin Super Lawyers magazine as a five-time “Rising Star” earlier in his career and as a “Super Lawyer” each year since 2014.

“I’m proud to be an integral member of this team and also to play an important role in the continued success of my clients, to whom I owe a debt of gratitude for their ongoing support, collaboration and confidence,” said Finerty.

GOVERNOR WALKER PROPOSES TO ELIMINATE THE LABOR AND INDUSTRY REVIEW COMMISSION

By:  Jonathan T. Swain

February 13, 2017

In his recently published proposed biennial budget for fiscal years 2018 and 2019, Governor Walker has proposed to eliminate the Wisconsin Labor and Industry Review Commission (LIRC).  LIRC is an independent three member commission appointed by the Governor that currently handles all appeals of Administrative Law Judge (ALJ) decisions for unemployment compensation cases, worker compensation claims, as well as state fair labor standards cases and fair employment cases in the Equal Rights Division and public accommodation cases.  LIRC would be phased out over the next three fiscal years.

Presently, LIRC has the authority to affirm, overturn and remand ALJ decision in these areas.  LIRC decisions are appealable to the State’s circuit courts.

Under Governor Walker’s proposal, Worker Compensation ALJ decisions will be reviewable by the State Department of Administration, while jobless claims and Equal Right Division decisions will be Agency administrators.  In his budget statement, Governor Walker stated that the proposed elimination of LIRC will eliminate “an unnecessary layer of government” and will make this second layer of review decisions occur much more quickly.

Of course, this is a proposed budget and, as such, is subject to negotiation with the legislature and subsequent amendment.  Further, stakeholders in the business, labor and legal community have yet to weigh-in on the Governor’s proposal.  As this issue advances, we will keep you up to date and informed.