Category Archives: Wisconsin

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.

2017 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 9, 2017 at Potawatomi Hotel and Casino, followed by a networking cocktail hour and raffle.  This year’s presenters include many of the top administrators from the Worker’s Compensation Division and Labor & Industry Review Commission.  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.

If you are interested in attending this event, click Kids’ Chance of WI – Here’s The Deal Seminar – March 9, 2017 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.

Governor Walker Officially Proclaims November 14-18 Kids’ Chance Awareness Week

Kids’ Chance of Wisconsin, a non-profit organization that provides scholarships to children of seriously injured workers in Wisconsin, got a nod from Governor Scott Walker’s office with the official proclamation of November 14-18 as Kids’ Chance Awareness Week in Wisconsin.

Lindner & Marsack, S.C., along with other partners, helped establish Kids’ Chance in Wisconsin in 2013. Lindner & Marsack shareholder Douglas Feldman is a founding board member and Kids’ Chance of Wisconsin president. “When the family of a child in Wisconsin is affected by a serious workplace injury, we work to ensure that child is still able to pursue and achieve their educational goals,” Feldman says.

Kids’ Chance Wisconsin is the statewide affiliate of the national Kids’ Chance organization. Kids’ Chance Awareness Week is designed to increase visibility through special outreach events that help spread the word about Kids’ Chance scholarship opportunities. For more information about Kids’ Chance Wisconsin visit http://kidschanceofwi.org/.

Wisconsin Among 21 States to Challenge DOL’s New Overtime Rules

By Sally A. Piefer

With less than 90 days before the Department of Labor’s new white collar overtime rules take effect, Wisconsin is among a group of 21 states challenging the Final Rule.

On May 18, 2016, the Department of Labor (“DOL”) issued Final Rules changing the eligibility for overtime for employees falling in the executive, administrative or professional exemptions. The Final Rule more than doubles the minimum salary necessary for an employer to consider a particular job exempt from overtime, increasing the salary threshold from $23,600 to $47,476 annually ($913 per week). In addition, the Final Rule provides for automatic indexing of the minimum salary threshold every three years. This new “salary” test is expected to affect approximately 4.2 million U.S. employees who are currently considered exempt. The Final Rule was set to take effect on December 1, 2016.

The lawsuit, filed yesterday in federal court in Texas, charges that the DOL failed to analyze the type of work that an employee is doing in these exempt classifications and simply determined that the amount of salary received by the employee was the best indicator of whether the employee fit within one of the exemptions. The DOL, the lawsuit claims, failed to consider any changes to the duties tests because those changes would have been “more difficult.”  They charge that salary should not be used as a “proxy” for duties and that employees who satisfy the duties portion of the test should still be considered exempt. In addition, the States challenge the automatic indexing because the use of automatic indexing is “without specific Congressional authorization” and is therefore invalid. Instead, if the DOL wants to use automatic indexing, the Plaintiff States say this process should go through the normal administrative agency notice and comment rulemaking process.

In addition, the lawsuit states that the payment of overtime to employees who will no longer be eligible to be considered exempt would force not only state and local governments – but also private employers – to substantially increase labor costs. Unlike private businesses, the Plaintiff States allege that state and local governments have fewer discretionary funds available and therefore have less ability to reduce costs or increase revenue. The result of the Final Rule, they claim, will force state and local governments to reduce or eliminate essential government services and functions.

The Plaintiff States allege that the Final Rule violates the 10th Amendment. The Tenth Amendment, a section of the Bill of Rights, essentially says that any power that is not given to the federal government is given to the people or the states. The States say that compliance with the Final Rule will impair the States’ ability to run their governments because of the huge impact the Final Rule will have on their respective budgets. The States ask the Court to declare the Final Rule invalid. At this point, the Plaintiff States have not sought immediate injunctive relieve preventing the rule from taking effect on December 1, 2016, but perhaps that will come as the deadline draws closer.

Other states joining Wisconsin in the lawsuit are Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas, and Utah.

Shortly after this lawsuit was filed, the U.S. Chamber of Commerce and fifty different business groups also filed suit in federal court in Texas challenging the Final Rule. The Chamber’s lawsuit also alleges that the Final Rule disqualifies millions of employees from the executive, administrative, and professional employee exemption and that “the new salary threshold is no longer a plausible proxy for the categories exempted from the overtime requirement.”  The lawsuit also argues that the automatic update to the salary threshold every three years without rulemaking or seeking input from stakeholders is not authorized under the law.

Lindner & Marsack, S.C. will continue to keep you posted on further developments. However, in the interim, you should proceed as though the Final Rule will take effect on December 1, 2016, so that you are not scrambling or putting your business in jeopardy of running afoul of the Final Rule.

For more information about the DOL’s new overtime exemption rules or your general employment law needs, please contact Attorney Sally Piefer at (414) 226-4818 or spiefer@lindner-marsack.com or any of the other attorneys you work with at Lindner & Marsack, S.C.

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 spiefer@lindner-marsack.com 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 http://hle.wisbar.org/schedule.html.

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 http://www.lindner-marsack.com/ to learn more about the firm and how our experienced and innovative attorneys can help your business.

WISCONSIN RIGHT TO WORK LAW REINSTATED

District 3 of the Wisconsin Court of Appeals issued a decision yesterday, May 24, reinstating Wisconsin’s right to work law pending appeal of a Dane County Circuit Court Judge’s decision finding the law to be unconstitutional.  The Court of Appeals held that the Circuit Court erred in not granting a stay pending the appeal of the decision.

The decision means that unions and employers are again unquestionably prohibited from entering into agreements requiring union membership as a condition of employment.  Wisconsin was the 25th state to enact a so-called right to work statute.  Under the law, as contracts expire, are extended or are amended after March 11, 2015, the parties are precluded from maintaining or agreeing to contract language requiring employees to be members of a union.

It is anticipated the case will find its way to the Wisconsin Supreme Court.  Given that Court’s 5 to 2 conservative majority, we expect the law will ultimately be upheld.

 

STATUS OF RIGHT TO WORK LAW

By: Thomas W. Mackenzie

We issued an E-Alert on April 13 addressing Right to Work. Since then, a number of clients have asked for further clarity on the status of Wisconsin’s Right to Work law following the issuance of the Dane County decision.

On April 8, 2016, a Dane County Circuit Court judge found unconstitutional the 2015 statute making Wisconsin the 25th Right to Work state.  The law, which took effect on March 11, 2015, prohibited an employer and union to agree in a collective bargaining agreement that employees must be union members.  The trial judge found that because federal law requires unions to represent all employees – union members or not – it is an unlawful taking of property to deny the union fair compensation in the form of union dues for the services the union provides to employees who would choose not to be union members.

The Wisconsin Attorney General (“AG”) appealed the decision to the Wisconsin Court of Appeals late last week. The trial court judge denied the AG’s request for a “stay” pending the appeal.  We here at Lindner & Marsack anticipate that the AG will seek and likely be granted a “stay” from the Court of Appeals.  We also join most experts in predicting that the Dane County court decision will be reversed on appeal.

In the interim, however, employers and employees are left in a quandary in how to proceed. In assessing the issue, employers fall into one of three camps.  If your contract has not expired since the law’s passage in March, 2015 – your union security provision remains lawful.  As your contract expires, you should seek legal counsel on how to approach the issue.  Pending final resolution, unions will resist any argument that mandatory union membership is illegal in Wisconsin.

If your contract already expired and you eliminated all forms of union security from your contract, you need to do nothing. You have no language requiring union membership and your employees are free to choose to be members or refrain from union membership.

If, however, you fall in the third camp and you agreed to so called “snap-back” language that nullified your former union security clause only to the extent prohibited by law, the Dane County decision has put you in a legal gray area. Until the circuit court decision is “stayed” or reversed, you will need a strategy.

First, start with your “snap-back” language and determine whether the union has a claim that the union security clause has been “reactivated.” Second, wait and see how your union reacts.  Some unions may elect not to push the issue until the judicial dust settles.  Third, if your union insists on compliance with the union security which would mean the employer could be required to terminate an employee who fails to meet his or her dues obligation, the failure to terminate could trigger a grievance or an unfair labor practice charge.  Delaying the matter while the grievance or NLRB charge is processed is one option.  There are strong legal arguments that the Dane County decision only applies in Dane County and only applies to the Machinists (IAM), Steelworkers and the AFL-CIO, the plaintiffs in that case.  The other option is to tell your reluctant union member employees that they should keep current on dues while the matter is resolved through the courts.  If the non-members elect to satisfy the asserted dues obligation they might want to pay the union directly rather than using payroll deduction (so called dues checkoff).  Signing a union dues authorization card would obligate the employer to deduct dues for up to a one year period, even if the Dane County decision is reversed.

Again, the issue is put on hold if the Court of Appeals or Wisconsin Supreme Court issues a “stay.” Likewise, it goes away altogether if the Court of Appeals or Wisconsin Supreme Court reverses the Circuit Court.  These are likely outcomes, but until they occur, some unions may push the issue and force some hard choices while the matter plays out in the courts.

If you have questions about anything in this e-alert, feel free to call Tom Mackenzie or any other Lindner & Marsack attorney at 414-273-3910.