Wanezek, Jaekels, Daul & Babcock, S.C. Attorneys at Law — Founded 1908

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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.

LITIGATION EXPENSES IN CONDEMNATION CASES

The Wisconsin Supreme Court recently clarified that a condemning party is not required to make a jurisdictional offer in order for the condemnee to recover litigation costs. 

American Transmission Company (ATC) filed a condemnation proceeding against property owners hoping to obtain an easement on their land to lay transmission lines.  Under Wis. Stat. section 32.06(2a), the condemnor must attempt to negotiate personally with the property owner before making a jurisdictional offer.  In this case, ATC appraised the easement at $7,750 and the property owners agreed to convey the easement to ATC at that amount.  No jurisdictional offer was ever made. 

The Supreme Court found that the property owners were entitled to litigation expenses based upon the negotiated price even though ATC never made a jurisdictional offer.  Section 32.28(3)(d) allows a party to obtain litigation expenses where the award of a condemnation commission exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15 percent. 

In this case, the property owners appealed the amount of compensation awarded for the easement and the trial court exceeded the award by at least 15 percent.  The trial court granted the property owners litigation expenses as a result.  The Court of Appeals reversed and concluded that litigation expenses are not available unless the condemnor makes a jurisdictional offer.  The Supreme Court ultimately agreed with the trial court and determined that litigation expenses may be awarded even if no jurisdictional offer is made. 

The Supreme Court found that it was unreasonable to conclude that the legislature intended to treat better the contentious owner who forces the condemnor to go through the hoops of a jurisdictional offer than the cooperating owner who takes the negotiated price appeal route.   

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.

SOCIAL SECUIRTY DISABILITY BENEFITS

The Social Security Administration administers two programs that provide benefits based on disability:  Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI).  The monthly benefits for SSDI vary for each person based upon earnings and work history.  To be eligible to receive the benefits, you must have worked and earned a sufficient amount of money to be insured for Social Security purposes.  The payment of SSI benefits is not based upon work history.  SSI provides monthly income benefits to persons with limited income and financial resources regardless of their work history. 

SSA uses a five step evaluation process to determine whether a person is disabled or not for purposes of a SSDI and SSI claim.  First, the person can not be engaged in substantial gainful activity, meaning the person can not do significant work activity involving physical or mental activities that are performed for pay or profit.  Second, the person must be found to have a severe impairment.  A severe impairment must be medically determinable, physical or mental, and that can be expected to last for 12 continuous months.  Third, SSA looks at whether the person meets any of the listing or impairments that are outlined by the social security regulations.  If the person meets the listing of impairments, then the person is found to be disabled and no further evaluation is needed.  If the person is unable to meet the listing, the SSA will proceed to the fourth step of the evaluation.  For the fourth step, the person’s impairments must prevent past relevant work (i.e. any substantial work that the person has done within the past 15 years).  Finally, the person’s impairment must prevent him or her from making an adjustment to do other work in the national economy.  This step is where the vast majority of cases are decided but the burden shifts to SSA to prove that the person is able to do any other job in the national economy. 

Most people are able to file the initial application and other required documents for disability benefits on their own.  You can find the application online at www.socialsecurity.gov/diability.  A decision usually takes about 3-5 months.  If denied for the benefits, the second step is to file a Request for Reconsideration within 60 days of the denial.  If your Reconsideration motion is denied, you will need to request a hearing within 60 days before an Administrative Law Judge with the assistance of any attorney. 

Tags: Social Security Disability

WISCONSIN SUPREME COURT DECISION CLARIFIES REQUIRMENTS IN A TERMINATION OF PARENTAL R

In a termination of parental rights proceeding, there are two seperate and distinct phases. The first phase is the grounds phase, at which time the circuit court determines whether grounds exist to terminate a parent’s rights. An example of a sufficient ground for termination of a parent’s rights is abandonment. If grounds are found to exisit and a parent is determined to be unfit, the court will move to the second phase called the dispositional hearing at which time the court will determine if it is in the best interests of the child(ren) to terminate a parent’s rights.

 

A Brown County circuit court was recently appealed by a parent following her no contest plea at the grounds phase because she claimed the circuit court was required to inform her that she was giving up her constitutional right to parent as a result of her no contest plea. The Wisconsin Supreme Court disagreed with the parent because the immediate consequnce of a plea of no contest at the grounds phase is that the parent will be found to be unfit. A finding that a parent is unfit does not automatically result in parental termination because there is a dispositional hearing that will follow at which time it will be determine whether it is in the best interests of the child(ren) to terminate a parent’s rights. While the Wisconsin Supreme Court did agree that a parent must be informed about the rights that could be lost in the event of termination, the court is not required to explain that a right to parent derives from the constitution.

The Wisconsin Supreme Court upheld the decision of the circuit court and found that the parent had knowingly, voluntarily, and intelligently entered into a plea of no contest to the grounds for the termination of her parental rights. Our firm routinely helps parents with the termination of their parental rights as well as the adoption of the children following the termination.

Tags: Family Law

COURT CAN INCLUDE ALL SOURCES OF INCOME WHEN CALCULATING CHILD SUPPORT

When calculating child support, the Court will examine the gross income of the parties and the placement schedule with the children. Most often the only income source of the parties are their wages received from their employers. That doesn’t mean that a Court cannot consider other sources of income when calculating child support, like lottery winnings or personal injury settlements.

A case which illustrates this point is In re Marriage of Lyman v. Lyman.  After the parties had divorced, the husband received a multi-million dollar settlement from a wrongful termination of employment lawsuit.  The wife asked that the Court include the settlement amount received by husband for purposes of calculating child support.  The husband argued that the settlement was not income and not subject to child support.  The trial court found that the entire settlement amount was considered income for child support purposes and awarded the wife a substantial sum of money. 

The husband appealed the award of the trial court and the Court of Appeals noted that all income is presumed to be available to meet a parent’s obligation to support his or her child.  Child support payments are designed to maintain the children’s standard of living at the economic level they would have enjoyed had there been no divorce.  The husband’s claim that the settlement should not be included in his gross income was rejected by the Court of Appeals. 

If you have any family law related issues that you need assistance with, contact our office and ask for Greg. 

Tags: Family Law

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. 

CONDEMNATION

Many persons experience the difficult circumstances involving a state condemnation of private property. In particular in the Green Bay area there has been a recent increase of these types of state activities as the HWY 41 project / expansion occurs. Don’t be rolled over. State appraisers tend to be conservative in their appraisals for value. You have the right to contest the states appraisal by hiring your own appraiser at State expense. If no agreement is reached as to valuation you further have the right to appeal the determination to a commission or directly to the courts. Our firm has represented both municipalities processing condemnation matters and we have represented persons subjected to condemnation proceedings on numerous occasions. Warren, Greg or David at our office are prepared to assist you in obtaining the true value of your property as result of a condemnation proceeding.

THE BASICS OF A CHAPTER 7 BANKRUPTCY

In Green Bay, Wisconsin and other states, a Chapter 7 bankruptcy is often referred to as “straight liquidation,” meaning that the debtor’s unsecured and nonexempt assets are sold, and the proceeds from the sale of those assets are used to pay the administrative expenses of the bankruptcy along with the claims of the unsecured creditors.  More often than not, however, in a Chapter 7 bankruptcy, the debtor does not have any nonexempt assets and therefore there are no proceeds to pay to the unsecured creditors.

WISCONSIN BANKRUPTCY STEPS
When a Chapter 7 bankruptcy is filed, a trustee is appointed whose main purpose is to discover if there are any unsecured nonexempt assets in order to pay the debtor’s unsecured creditors.  The trustee also investigates whether the debtor made any preferential transfers to any unsecured creditors or family members within 90 days of the bankruptcy filing or made any fraudulent conveyances within 2 years of the filing.

 In most Chapter 7 bankruptcies, the only major event that occurs is that the debtor receives a discharge of his or her liability on dischargeable debts.  In addition, the debtor is also able to retain assets subject to secured liens through reaffirmation agreements with the secured creditor, provided that all or the majority of the equity in the property is exempt and the debtor pays the secured debt.

CHAPTER 7 BANKRUPTCY ELIGIBILITY
There are several factors to consider to determine if a person is eligible for a Chapter 7 bankruptcy.  This includes an evaluation of the debtor’s income (i.e. the mean’s test) and a review of the debtor’s prior bankruptcy filings.  In addition, a Chapter 7 bankruptcy might not be the best scenario for a debtor who wants to keep certain property that is not exempt from creditors.  In such a situation, other options should be explored including a possible Chapter 13 bankruptcy.

A Chapter 7 bankruptcy case is commenced with the filing of a petition and numerous supporting schedules with the respective bankruptcy court which essentially discloses all the assets, liabilities, income and expenses of the debtor.  Once the case is filed, an automatic stay becomes effective immediately which prohibits creditors from bringing most actions against the debtor and against the debtor’s property.  In certain circumstances, creditors may obtain relief from the automatic stay so that they may continue the pursuit of their claims against the debtor while the bankruptcy case is pending.

A meeting of creditors is held between 20 and 60 days after the bankruptcy case is filed.  The trustee presides at the meeting and questions the debtor about the schedules and the debtor’s financial dealings.  Creditors are allowed to question the debtor at this meeting but often do not attend.  If it is found that the debtor is entitled to a discharge of his or her debts, the debtor will be granted a discharge about two months following the meeting of creditors and the case will be closed.

GREEN BAY WI BANKRUPTCY LAW FIRM
This is a basic overview of some of the key concepts of bankruptcy.  There are many other details involved and this article should not be construed to be an exhaustive list.  In the Green Bay, Wisconsin area, if you have any questions regarding bankruptcy, contact Attorney Greg Babcock at our law firm:Wanezek, Jaekels, Daul & Babcock. Our experienced attorneys are ready to help you learn your bankruptcy rights.

Tags: bankruptcy

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