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WORKPLACE AND CONVICTION RECORDS IN WISCONSIN

Wisconsin’s Fair Employment Act protects people with felony conviction from employment discrimination. This protection is available only under state law as there is no federal equivalent. Employers are not allowed to discriminate based on past convictions or charges unless it “substantially relates to the job.” The substantial relationship is determined by comparing the circumstances surrounding the crime with the circumstances surrounding the job. If a felon convicted of embezzlement applied for an accounting position, it is likely that there would be a finding that the two positions are “substantially related.” However if that same felon applied for a job as a cook, there is little basis to claim the conviction is “substantially related” to the job. The healthcare industry has some additional requirements when it comes to employment as some offenses are automatically considered to be related under the Wisconsin Caregiver Law. When it comes to discrimination cases, the more documentation you have the better. Employers sometimes violate the Wisconsin Fair Employment Act by discriminating against those with criminal convictions or pending charges. Our firm has extensive experience in resolving these claims. Contact Attorney David D. Daul for a consultation.

ERISA DISPUTES

Many employers offer an employee benefit plan which may include benefits such as long term disability, or short term disability. Typically these benefits are provided by an insurer, not the employer and are governed by a federal law known commonly as ERISA. (Employee Retirement Income Security Act) These benefits seem very generous and employees often take comfort knowing they are there. However, in some cases the insurance carrier disputes the employee’s eligibility to the benefits. This can be very distressing to an employee, especially when the denial is unjustified. Employees must be aware that when a denial occurs, ERISA requires and accelerated dispute period. You must not wait when a denial occurs and appeals must be submitted promptly, usually within a few months–which is much different than other types of insurance disputes. Further the material submitted in the administrative appeal is the only material that may be considered if there is a lawsuit later on. If you fail to get important evidence into the administrative record you can not do so later. Employees in this situation should not try to handle these claims themselves and should seek competent legal representation. Atty. David Daul has handled numerous ERISA claims and actively seeks them out. Do not hesitate to call for a free consultation on the merits of your employee benefit case.

OVERVIEW OF EMPLOYMENT LAWS

Wisconsin is an at will employment state.  This means that you may be legally fired for any reason at any time, unless the reason for termination is for some discriminatory reason prohibited by State of Federal Law.  Many persons experience a firing which they suspect or know, may be for a discriminatory reason.  There are many Federal and State Laws employees may invoke to correct the illegal firing, obtain re-instatement and or obtain back or front pay.  You may be familiar with the laws, but in summary they are as follows:

FEDERAL LAWS

Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin; 180 time limit to make claims.

the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;

the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;

Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;

Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and

the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

Wisconsin Fair Employment Law

Protected classes: Age, Ancestry, Arrest Record, Color, Conviction Record, Creed, Disability, Genetic Testing, Honesty Testing, Marital Status, Military Service, National Origin, Pregnancy or Childbirth, Race, Sex, Sexual Orientation, Use or nonuse of lawful products off the employer’s premises during nonworking hours. Employees may not be harassed in the workplace based on their protected status nor retaliated against for filing a complaint, for assisting with a complaint, or for opposing discrimination in the workplace. There is a 300-day time limit for filing a discrimination complaint. 

These claims can be very hard to prove, and a person experiencing such discrimination may wish to consult with a lawyer at Wanezek & Jaekels.  Time deadlines are much shorter in such cases, and you must file your claim shortly after the firing or you may lose your right to maintain the action.  These cases, often referred to as “civil rights” claims contain a statutory allowance for recovery of attorney fees, if you prevail, you may be awarded the attorney fees you incurred in bringing the claim in addition to other damages.   We routinely handle such case for employees.  Please contact David Daul or Warren Wanezek at our office for a free consultation and evaluation of your claim.

WISCONSIN COURT OF APPEALS CLARIFIES EMPLOYEE CAUSES OF ACTION AGAINST FORMER EMPLOYE

This week in SEDLACEK V. D. MARK GROUP, INC., D/B/A MANPOWER the Wisconsin Court of appeals clarified when an employer can lawfully terminate an employee who refuses to allow payroll deductions for unearned compensation.  Further the court clarified what the burden of proof is where the employee claims the employers disparaging remarks about a former employee resulted in loss of employment opportunity.

Manpower, a staffing firm, hired Sedlacek in 2002 and placed her at Kell Container, where she worked as a production associate. In 2008, Kell advised Manpower that bill rates were too high, and Manpower began an investigation. Manpower discovered that, instead of a $.50 raise, Sedlacek had mistakenly received a $2.00 raise in 2007 and had been overpaid $934.73. Sedlacek’s attorney made clear in a letter that Sedlacek would not consent to reimburse Manpower for the overpayment.  Sedlacek was terminated.

 Sedlacek applied for several other positions but was not able to locate work other than at McDonalds. Sedlacek asked a social friend, Dr. Kristina Nyhus, whether any work was available in Nyhus’ chiropractic business. Nyhus thought there might be three or four hours of extra filing, but was not actively looking for a new employee. Nyhus decided not to hire Sedlacek because the office manager wanted the overtime hours.

During this time, Sedlacek became curious about what Manpower was telling prospective employers and asked Nyhus to contact Manpower. Manpower initially refused to discuss Sedlacek’s work history or performance with Nyhus. When Nyhus persisted, the Manpower representative stated that Sedlacek was not welcome back at Manpower. Sedlacek brought suit, alleging wrongful termination and tortious interference with prospective employment. The circuit court dismissed both claims on summary judgment.

The court held that it is lawful for an employer to terminate an employee who refuses to consent to a voluntary payroll deduction for unearned compensation.  The court further found that Sedlacek did not make a sufficient showing that anything the employer did caused her to lose future employment.  Simply showing the employer stated that she was “not welcome back” was insufficient to prove a cause of action for interference with prospective employment.

Our lawyers routinely handle disputes for both employers and employees.  Often there are concerns as to what an employer should do when a reference for a bad employee is sought.  Likewise in some cases employees suspect the former employer may be giving less than sterling references.  Contact Warren or David to consult with any concerns you may have regarding such issues.

FIREFIGHTER INJURED PLAYING BASKETBALL AT WORK IS ENTITLED TO WORKER’S COMPENSATION

Recently, the Wisconsin Court of Appeals found that an on-duty firefighter injured while playing basketball near the firehouse is entitled to worker’s compensation benefits. 

The firefighter injured his bicep while playing basketball with fellow firefighters and the injury kept him out of work for nearly four months.  When the firefighter applied for worker’s compensation benefits, the City denied his claim arguing that the injury did not arise out of his employment or while performing services incidental to employment.  The firefighter appealed the denial of benefits to a commission and the commission determined that the firefighter was entitled to benefits because the job demanded fitness activity while on active duty. 

 The Court of Appeals affirmed the decision in City of Kenosha v. LIRC, 2010AP883 (March 16, 2011).  The Court of Appeals found that a “well-being activity exclusion” did not bar the firefighter’s worker’s compensation claim.  This exclusion would normally act as a bar for a person to receive worker’s compensation benefits.  However, the Court of Appeals ruled that the exclusion did not apply to this particular case because the firefighter was being compensated at the fire station at the time of his injury.  The Court noted that the fire department encouraged firefighters to engage in physical fitness activities while on duty while standing ready to fight fires to hopefully avoid being injured while fighting a fire.   

Our office can assist you with receiving the worker’s compensation benefits that you are entitled to.  If you believe that you are entitled to receive worker’s compensation benefits as a result of an injury that occurs while you are at work, contact Dave Daul to set up an appointment. 

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