On July 27, 2023, the Wisconsin Court of Appeals held in Mosley v. Oakwood Lutheran Senior Ministries that verbal disclosure of an employee’s COVID-19 status does not support a violation of Wisconsin healthcare record disclosure laws or a cause of action for invasion of privacy.
In a decision providing guidance to employers facing requests for health-related accommodations, the Wisconsin Court of Appeals held in Wingra Redi-Mix Inc. v. Labor and Industry Review Commission that a formal diagnosis at the time of an employee’s request for accommodation is not required to raise the protections of the Wisconsin Fair Employment Act.
The increasing prevalence of artificial intelligence (AI) tools and, in particular, generative AI is creating more reason for employers to adopt workplace policies that communicate to employees whether the use of these applications is appropriate and any commensurate limitations.
In a decision relevant for employers utilizing video surveillance equipment in the workplace and those considering the installation of video cameras, the National Labor Relations Board concluded that an employer created an “unlawful impression of surveillance” by viewing camera footage of an employee, even though the employee was not engaged in protected concerted activity.
The launch of ChatGPT on November 30, 2022, ushered in an explosion of interest by businesses seeking to incorporate large language model artificial intelligence applications into the workplace. To capitalize on efficiencies that this technology presents, many employers have implemented or are considering the use of chatbots to serve human resource functions.
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
On April 7, 2023, the National Labor Relations Board (NLRB) released its filing data through the first half of its fiscal year (FY) 2023 (October 1–March 31). Through the first six months of the fiscal year, filing activity continued to build on record increases that developed in FY 2022.
Employers are increasingly offering periods of leave as a benefit for employees to combat burnout and retain high-quality workers. Employees are also asking for leave more frequently.
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
On January 31, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) held a public hearing, titled, “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier,” to receive panelist testimony concerning the use of automated systems, including artificial intelligence, by employers in employment decisions.
On January 19, 2023, the U.S. Department of Labor’s Bureau of Labor Statistics (BLS) reported that the national union membership rate declined from 10.3 percent in 2021 to 10.1 percent in 2022.
In a decision instructive to employers facing sudden, emergency conditions requiring immediate response, a divided National Labor Relations Board (NLRB) in Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc., 372 NLRB No. 37 (December 28, 2022), expanded an employer’s obligation to bargain with a union in the aftermath of exigent circumstances.
In a decision impacting employers that face a petition for election that seeks to represent part of the workforce, a divided National Labor Relations Board (NLRB) returned to its former Specialty Healthcare standard to apply to bargaining-unit determination cases in American Steel Construction, Inc. (372 NLRB No. 23).
In a decision significant to employers that employ strike replacement employees or that may consider hiring strike replacement employees, the National Labor Relations Board (NLRB) found that such employees hold the right to request the presence of a union representative during an investigatory interview that may lead to discipline.
When employees are arrested during their off-duty time and away from work, employers may need to make difficult choices balancing their various obligations. Among these are respecting the rights of arrested employees, ensuring the safety of workforces and workplaces, maintaining the continuity of business operations, and preserving brand integrity and corporate reputation—as well as considering how state and federal laws might relate to the conduct at issue and to any decision to retain, suspend, or discharge arrested employees. As with most things, process and risk assessment matter, and the way that decision-makers meet the moment may make the difference between an optimal outcome and an outcome that subjects employers to liability. Here are four questions and answers for employers weighing their options in these situations.
On March 10, 2022, the Wisconsin Supreme Court released its decision in Cree, Inc. v. Labor and Industry Review Commission, which provides significant clarity for employers evaluating whether a domestic-related crime of an employee or applicant is substantially related to a job and thus a lawful reason for discharging or not hiring the individual.
On January 13, 2022, in Waters v. Day & Zimmermann NPS, Inc., the First Circuit Court of Appeals became the third federal appellate court to address the application of the Supreme Court of the United States’ decision in Bristol-Myers Squibb Co. v. Superior Court of California to Fair Labor Standards Act (FLSA) collective actions. Unlike the Sixth Circuit Court of Appeals and the Eighth Circuit Court of Appeals, however, the First Circuit concluded that a federal court does have personal jurisdiction over claims asserted by nonresident opt-in plaintiffs. The First Circuit’s decision thus creates a split among federal appeals courts and raises the prospect that the Supreme Court will ultimately have to resolve the issue.
On January 18, 2022, the City of Milwaukee Common Council passed an ordinance that would require masks to be worn indoors until March 1, 2022. The city’s acting mayor has not yet signed the order, but he has signaled that he is likely to do so.
With the calendar having turned to 2022, it is time to look into the crystal ball and make a few predictions for the year ahead related to the wage and hour world.
Wisconsin is one of a limited number of states that prohibits discrimination in employment on the basis of arrest or conviction records. The Wisconsin Fair Employment Act (WFEA) protects “properly qualified individuals” from unlawful discrimination “by reason of their … arrest record[s] [or] conviction record[s].” Employers defending against claims of arrest- or conviction-record discrimination under the WFEA may raise a defense to liability that asks whether an employee’s or applicant’s charge or conviction “substantially relate[s] to the circumstances of the particular job[.]” That is, the WFEA provides that an employer is not prohibited from suspending an employee who is charged with a felony, misdemeanor, or other offense, or from refusing to employ an individual who is convicted of a crime that is substantially related to his or her position.
Since it was passed in 1998, Iowa’s Drug-Free Workplaces Act has been one of the most comprehensive and complex drug-testing statutes in the United States. On June 25, 2021, the Iowa Supreme Court issued a pair of decisions—Dix v. Casey’s General Stores, Inc. and Woods v. Charles Gabus Ford, Inc.—that provide an in-depth analysis of the requirements that Iowa’s drug testing statute impose on employers and the level of compliance that employers must achieve to conduct enforceable testing.
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.
A growing trend among employers that are turning to new and updated methods of fostering employee collegiality and team bonding involves e-sports leagues. Similar to the traditional company softball team, e-sports leagues provide a modern method for employees to form teams that compete at video games against squads of workers from other businesses. This competitive medium has gained in prominence during the COVID-19 pandemic as employers seek innovative ways for employees to interact while observing social distancing precautions. Employers can view these competitive outlets as a means of fostering creativity, building rapport, and developing trust among personnel.
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.
As the pandemic continues, a segment of individuals who contracted COVID-19 reports that they have not experienced a quick recovery. Rather, they are continuing to suffer symptoms months after initial onset of the disease. Known as coronavirus “long-haulers,” these individuals report that they endure effects such as chronic fatigue, shortness of breath, brain fog, and other symptoms far down their road to recovery. While recuperation from a typical cold or flu lasts between 7 to 14 days, long-haulers are reportedly experiencing the consequences of COVID-19 for a far longer period and months after diagnosis.
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.
Many businesses are continuing to hire for open positions during the COVID-19 pandemic. Employers that need to continue their hiring processes may see video conferencing platforms as a valuable tool to complete job interviews while maintaining physical distancing. While affording interview participants a more personable experience than a simple telephone interview, these software services can raise unique challenges and potential legal issues that employers may want to take into consideration.
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.
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.
Some employers may think the National Labor Relations Act (NLRA) is a law that does not apply to them because their employees are not represented by unions. However, the NLRA’s coverage is much broader than just union relationships.
