Wisconsin Supreme Court Limits Tort Claims Related to Conduct Following Worker’s Compensation Injury

On May 20, 2021, the Wisconsin Supreme Court limited the tort claims an employee may bring based on alleged conduct that occurred between injuries covered under the state’s workers’ compensation law. The opinion in Graef v. Continental Indemnity Company may support employer arguments to limit employment-related litigation claims brought by employees because worker’s compensation provides an exclusive remedy to employees injured in the course of employment.

Wisconsin Legislature Expressly Authorizes Electronic Tip Declarations

Like the federal Fair Labor Standards Act, Wisconsin law allows hospitality employers to pay certain tipped employees less than the minimum wage with the understanding that the tips they receive will cover the difference. More specifically, Wisconsin law allows employers to claim a tip credit of up to $4.92 per hour for employees who “customarily and regularly receive tips.” Among other things, Wisconsin law requires employers to have a “signed tip declaration” in order to claim the credit.

Wisconsin Joins States Providing Civil Immunity Related to COVID-19 Exposure

On February 25, 2021, Wisconsin joined Alabama, Georgia, Indiana, Iowa, Louisiana, Michigan, Mississippi, Missouri, Montana, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and Wyoming in enacting a COVID-19 litigation shield law. Governor Tony Evers signed a bill providing entities broad immunity from “civil liability for the death of or injury to any individual or [for] damages caused by an act or omission resulting in or relating to exposure, directly or indirectly, to … COVID-19.”

Seventh Circuit Decision May Portend Increase in Equal Pay Act Claims for Illinois, Indiana, and Wisconsin Employers

On January 5, 2021, the U.S. Court of Appeals for the Seventh Circuit issued a decision in Kellogg v. Ball State University that expanded the scope of potential evidence plaintiffs may rely on to support their Equal Pay Act (EPA) claims. The decision serves as a warning to Illinois, Indiana, and Wisconsin employers to consider reviewing employee compensation to ensure compliance with pay equity requirements.

Time to Vote: Employee and Employer Voting Leave Rights and Obligations for the 2020 Elections

Elections in the United States are scheduled for Tuesday, November 3, 2020. Not only will the office of president of the United States be contested, but all 435 seats in the U.S. House of Representatives and 35 of the 100 seats in the U.S. Senate are up for grabs. At the state level, elections will be held for the governorships of 11 U.S. states and 2 U.S. territories.

Wisconsin Becomes a Hotbed for ERISA Class Action Claims

In recent months, Wisconsin federal courts have witnessed a dramatic increase in class litigation raising breach of fiduciary duty claims under the Employee Retirement Income Security Act of 1974 (ERISA). These claims target sponsoring employers and individuals who oversee plan investments and plan fees for employer-sponsored 401(k) plans.

Wisconsin Masks Up: Governor Evers Issues Statewide Face Covering Order

On July 30, 2020, Wisconsin joined 31 other states—including Alabama, California, and Pennsylvania—with a statewide face covering order. Governor Tony Evers issued Emergency Order #1, requiring all individuals in Wisconsin over the age of five and medically able to do so to don cloth face coverings (not including face shields or mesh coverings) any time they are “indoors or in an enclosed space, other than a private residence,” and in the presence of others outside their households.

Wisconsin Supreme Court Invalidates State’s ‘Safer at Home’ Order

On May 13, 2020, the Wisconsin Supreme Court issued its decision in Wisconsin Legislature v. Secretary-Designee Andrea Palm, et al. and declared the state’s Safer at Home Order unlawful, invalid, and unenforceable, creating a rush by local jurisdictions to issue orders to prevent the spread of COVID-19, resulting in uncertainty for businesses as to how to operate.

Wisconsin Economic Development Corporation Releases Reopening Guidelines

On May 8, 2020, the Wisconsin Economic Development Corporation (WEDC) published a series of general and industry-specific guidelines to assist businesses with reopening under Governor Tony Evers’s “Badger Bounce Back” plan. Guidelines are available for many industries, including agriculture, construction, entertainment/amusement, gym and fitness centers, hair and nail salons, hospitality/lodging, manufacturing, professional services, public facilities, restaurants, retail, transportation, outdoor gatherings, outdoor recreation, and warehouse/wholesale trades.

Wisconsin Extends Safer at Home Order to May 26, 2020

On April 16, 2020, Wisconsin Department of Health Services Secretary Andrea Palm issued an updated Safer at Home Order (Emergency Order #28), which extends and makes certain adjustments to the agency’s original order that took effect on March 25, 2020. The updated order is effective April 24, 2020, and will remain in effect until 8:00 a.m. on May 26, 2020. The state also issued a list of frequently asked questions (FAQs) related to the order.

Wisconsin Governor Issues Safer at Home Order Effective March 25

On March 24, 2020, Wisconsin Governor Tony Evers issued “Emergency Order #12: Safer at Home Order” in response to the COVID-19 pandemic. The order, which requires Wisconsin residents to “stay at home or place of residence” except to engage in certain activities, is similar to those issued in several other states (including California, Delaware, Illinois, Indiana, Michigan, and Pennsylvania).

Data Privacy Act Sponsors Seek to Bring GDPR Requirements to Wisconsin

On February 10, 2020, bipartisan cosponsors in the Wisconsin State Assembly introduced a trio of bills targeting the use of personal data information and modeled after the requirements of the European General Data Protection Regulation. Titled by their sponsors as the “Wisconsin Data Privacy Act,” the three bills work together to regulate what data a company may collect on an individual, when the company may collect it, how the company may use it, to whom the company may give it, and how long the company may retain it.

ADA Litigation Lessons Surfaced From a Zamboni Machine

Employers, you see this movie all too often. You tolerate, and then ultimately discharge, a poor-performing employee who displays a bad attitude. Unfortunately, supervisors have not documented the employee’s prior instances of insubordinate and adversarial behavior. In addition, he hurt himself on the job, filed a workers’ compensation claim, and presented medical restrictions. In his mind, he cannot believe that he was the problem. So he sues, alleging that you failed to accommodate his disability and unlawfully terminated his employment.

Seventh Circuit Holds That Obesity Alone Is Not a Protected Disability Under the ADA

In a matter of first impression before the court, the U.S. Court of Appeals for the Seventh Circuit recently held in Richardson v. Chicago Transit Authority, Nos. 17-3508 and 18-2199 (June 12, 2019), that obesity is not a protected disability under the Americans with Disabilities Act (ADA) unless a plaintiff can demonstrate that it is caused by an underlying physiological disorder or condition. With the decision, the Seventh Circuit brought clarity to a novel issue previously unresolved for employers in Illinois, Indiana, and Wisconsin.

Wisconsin LIRC Determines Even Very Upsetting Criminal Convictions May Not Be Substantially Related to the Job

Wisconsin employers deciding whether to hire an applicant with a criminal background often find themselves between a rock and a hard place. If they fail to take reasonable care screening the applicant, they may face a negligent hiring claim. But if they screen too stringently, they may face a claim that they violated the Wisconsin Fair Employment Act, which prohibits discriminating against applicants with a conviction record that does not substantially relate to the job.

Wisconsin Supreme Court Holds Carrying “Necessary and Indispensable” Tools in a Company Van Does Not Make a Commute Compensable

Last year, a Wisconsin court of appeals held that it was unsettled under Wisconsin law whether employers may be required to pay employees for time spent driving between home and work in company vans if the vans are also transporting work tools and equipment.

Wisconsin Judge Rules That HR’s Assurances Before Employee’s One-Year Anniversary May Give Rise to FMLA Claim

Employees are not eligible for leave under the federal Family and Medical Leave Act (FMLA) unless, among other things, they have worked for a covered employer for at least 12 months. It is also a matter of common sense that only employees who are actually eligible for FMLA leave can assert a claim for interference with those rights. Or is it?