U.S. Department of Labor Issues New Guidance on Remote Work

The COVID-19 pandemic has led to a transformation of the workplace and an explosion of remote work, including for employees previously not covered under employers’ telecommuting policies. Despite the reopening of most state economies, many employers are continuing to allow their workforces to work remotely. Remote work by nonexempt employees can pose a challenge with regard to ensuring employees are paid for all time worked, as the traditional workday may be blurred in a remote environment. On August 24, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued Field Assistance Bulletin (FAB) No. 2020-5 regarding employers’ obligations to use reasonable diligence in tracking remote employees’ hours. The guidance affirms the value of a clear system for reporting time and a requirement that employees promptly and accurately report their time—especially in a remote work environment.

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.

Social Media Posts During Turbulent Times: FAQs on Employee Rights and Employer Responsibilities

Many people have commented on social media regarding the anti-racist movement that has been gaining strength in the wake of police officers killings around the country. Unfortunately, some of these posts are inflammatory, derogatory, offensive, or racist. Even though employees are generally posting on their personal social media pages and are often doing so outside of work time, coworkers and even community-members to employers are increasingly complaining about offensive comments employees are posting on various social media platforms. While sometimes the conduct is so severe that employers can easily determine the appropriate consequences, in other cases employers must balance a variety of legal requirements, employee and public relations concerns, and their own company values. The following are answers to frequently asked questions about these issues.

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 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).

Tips for Shutting Down in Response to State Shelter-in-Place Orders

California, Connecticut, Illinois, Pennsylvania, and New York have all issued statewide shelter-in-place orders in response to the COVID-19 pandemic, and more states may follow. Employers that do not qualify for an exemption under the applicable state order or that decide to severely curtail or shut down operations may want to consider some of the following issues.

Illinois Governor Issues Statewide Shelter-in-Place Order

On March 20, 2020, Illinois joined California, New York, and Pennsylvania in issuing a sweeping closure order to contain the spread of COVID-19. Illinois Governor J.B. Pritzker issued Executive Order 2020-10, Executive Order in Response to COVID-19 (COVID-19 Executive Order No. 8), directing “all individuals currently living within the State of Illinois . . . to stay at home” except as necessary for “Essential Activities, Essential Government Functions, or to operate Essential Businesses and Operations.”

#MeToo-Inspired Laws Hit the Midwest: Illinois Passes Anti-harassment, Pay Equity, and Board Diversity Legislation

After ending 2018 with a slew of new employment laws, Illinois continues to enact legislation impacting employers. Following the example set by California, Washington, and other states recently, the Illinois legislature passed four new bills targeting equity, transparency, and discrimination last week, and Governor J. B. Pritzker is expected to sign them into law.

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.

DOL Opinion Letter Clarifies Designation and Use of FMLA Leave

On March 14, 2019, Keith Sonderling, the acting administrator of the Wage and Hour Division (WHD) of the Department of Labor (DOL) issued an opinion letter clarifying the DOL’s position on designating and taking leave under the Family and Medical Leave Act (FMLA) and placing the department at odds with the Ninth Circuit’s Escriba decision.

Failure to Provide Employee With Adequate Pumping Breaks and Accommodations Led to $1.5 Million Verdict

In March 2010, as part of the passage of the Affordable Care Act, the Fair Labor Standards Act (FLSA) was amended to require most employers to provide nonexempt employees “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk”; and “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Put It in the CBA: Supreme Court Once Again Finds Retiree Health Benefits Are Not Vested

On February 20, 2018, the Supreme Court of the United States tackled another controversy from the Sixth Circuit Court of Appeals regarding whether retiree medical benefits enjoyed by individuals who retired while a collective bargaining agreement (CBA) was in effect must be continued by the employer even after the expiration of the labor contract that created the benefits. Once again, the Supreme Court reversed the Sixth Circuit in ruling that the CBA at issue did not clearly obligate the employer to provide retiree medical benefits indefinitely.

Careful Drafting Required: Restrictions on Employee Solicitation Subject to Wisconsin Non-Compete Law

Many employers want to prevent their trusted employees from leaving the company and poaching their employees. In Manitowoc Company, Inc. v. Lanning, No. 2015AP1530 (January 19, 2018), the Supreme Court of Wisconsin examined a non-solicitation provision prohibiting Manitowoc Company’s former employee, Lanning, from “directly or indirectly soliciting, inducing, or encouraging any employee of Manitowoc Company to terminate his or her employment with Manitowoc Company or to accept employment with a competitor, supplier, or customer of Manitowoc Company.” Lanning, a “successful, knowledgeable, and well-connected” 25-year employee of Manitowoc, left the company to go work for a competitor. He then contacted at least nine Manitowoc employees about potential employment opportunities with his new employer, took one Manitowoc employee out to lunch, took one Manitowoc employee on a tour of the competitor’s plant in China, and participated in another Manitowoc employee’s job interview with the competitor.