HQ-Law Blog

THE NOTSO INDEPENDENT MEDICAL EXAM

contact@hq-law.com (HQ-Law) — February 22, 2012

So, you were injured at work and now your employer's worker's compensation carrier wants you to meet with their so-called "independent" doctor. What should you expect about this appointment and what can you do to give yourself the best chance of receiving your worker's compensation benefits

The first thing you should know is that you will be meeting with a doctor who has been paid by the insurance company. The doctor is not independent and is not there to help you with your injury. When the insurance company sets an appointment for you to see their doctor, it is usually a sign that your claim is about to be denied.

This doctor will be looking for anything that calls your claim into question. For example, the doctor may question you about how the injury happened. If your story is different from how it was reported on an injury form or in the notes that your doctors took, the insurance company doctor may say that your report of the injury is "inconsistent." If possible, review your medical records and injury reports to remind yourself how you described the injury. Make sure your description remains clear and consistent.

The insurance company's doctor may also try to describe the nature of your medical problems as a "pre-existing condition." If you have never sought medical treatment for the injured body part prior to the work injury, make sure that the insurance company's doctor knows this. If you have received medical treatment for the same body part - that's ok. If this is the case, make sure to explain when that treatment was (especially if it was many years ago). If the treatment was closer to the injury at work, explain to the doctor why the injury at work felt different. Was the pain more severe Did you hear a pop or crack that you had never heard before These are key facts that the insurance company's doctor must take into consideration.

Beyond this, I provide my clients with the following list of tips when preparing for a meeting with the insurance company's doctor:

* Be prompt, polite and cooperative. But, also be firm. If the doctor says something you don't agree with, make sure that you tell the doctor why what was said is false.

* Be aware of video surveillance activities to and from the exam as well as any time during the duration of your claim (do not exceed any physical limitations set by your doctor at any time).

* Be aware that the doctor and/or employees of the doctor's office routinely watch your movement in and out of the exam, from the parking lot to the exam office and exiting the building.

* Answer truthfully about prior accidents or injuries if specifically asked.

* Do not complete a questionnaire!

* Do not sign any authorizations.

* Do not answer medical and employment questions that are not reasonably related to your injury being claimed.

* Take notes about the appointment.

You are entitled to receive a copy of the doctor's report. When you receive this report, review your notes from the appointment and make additional notes about the facts and opinions that you disagree with in the report. This will be valuable to your attorney in preparing your worker's compensation case. If your worker's compensation claim has been denied or if you would like to talk to an attorney prior to your appointment with the insurance company's doctor, please call Hawks Quindel to speak with an experienced worker's compensation attorney for a free, confidential consultation.

FIRST AMENDMENT RIGHTS OF EMPLOYEES

contact@hq-law.com (HQ-Law) — February 21, 2012

Speaking At Your Own Risk"

Wisconsin has been abuzz for the last year with all things policy and politics - from protests to recall elections to fundamental changes in laws, citizens of Wisconsin are reacting. As these issues develop, people young and old are choosing to express their opinions using various outlets "" writing letters to newspaper editors, commenting on online articles, attending public rallies, posting on Facebook, tweeting on Twitter, uploading videos to YouTube, exchanging emails and much more. The question is whether expressing these opinions can put you at risk of losing your job. The answer is yes.

(1) Private Employers

Private employers do not have an obligation to recognize their employee's free speech rights and because Wisconsin is an "at will" employment state, a private employer may discipline or terminate you with or without a reason, as long as the adverse employment action is not based on your association with a protected class (i.e. disability, race, pregnancy, sexual orientation, etc.). This means that if your employer doesn't like what you are saying "" either on or off duty "" on your Facebook page, or Twitter account, or your blog, to a radio call in show or to your co-workers in the break room, you can be terminated and the First Amendment will not protect you.

(2) Public Employers

Unlike private employees, public employees do enjoy First Amendment protection, though the protection is more limited than for private citizens. For public employees, there is a four part analysis to determine whether speech is protected. It's important to remember that each case involving public employee speech is fact specific and different factors can lead to different results, depending on the employee's job duties, the forum used for the speech, whether there is an employment policy governing the speech, and what type of services the public employer provides. That said, the questions below provide a general overview of the analysis required to determine if a public employee's speech is protected.

(a) Is the public employee acting pursuant to his or her official duties

Is the speech the type of speech that an employee must do to accomplish his or her job

If the employee is acting pursuant to his or her official duties, there is no First Amendment protection and the analysis ends.¹

If the employee is not acting pursuant to his or her official duties, the elements below will be analyzed.

(b) Is the public employee speaking on a matter of public concern

Has not been explicitly defined by courts but issues involving political or social matters are most commonly found to be matters of public concern.

(c) Is the public employee's interest in his or her free speech rights more important than the public employer's need to deliver government services

Does the employee's speech disrupt or make it difficult for the public employer to provide the services it is tasked to provide

(d) Would the public employer have terminated the employee even if the public employee hadn't engaged in the speech

Even if the speech would be protected under the First Amendment, a public employer can demonstrate that the employee would have been fired even absent the protected speech.

Courts, public employees and public employers are still working through questions about the First Amendment as applied to public employees, especially in light of the increasing use of social networking sites and other internet forums. As with many situations, the case law in this area has not developed nearly as quickly as it needed to. Employers, employees and practitioners will continue to watch for guidance from courts grappling with these issues.

If you or someone you know has a question about employment law, contact Hawks Quindel, S.C. for a consultation.

¹ The author notes that there is a Circuit split on application of this principle, which was established in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). The Seventh Circuit however, has applied the Garcetti "official duties" test as articulated above and for that reason, is used in this blog post, which originates in the Seventh Circuit's jurisdiction. See Mayer v. Monroe Cnty. Community School Corp., 474 F.3d 477 (7th Cir. 2007).

THE H1B VISA PROGRAM AND BENCHING

contact@hq-law.com (HQ-Law) — February 20, 2012

While H-1B visas offer a great opportunity for both foreign nationals and American companies, unscrupulous employers can potentially take advantage of people's desire to work in the United States. Abuses include failing to pay H-1B workers at the required wage and failing to pay them when work is unavailable.

Under the Immigration and Nationality Act ("INA"), an employer in the United States can petition the federal government to allow a foreign national to work here as an H-1B nonimmigrant worker. In order to receive an H-1B nonimmigrant classification from the federal government and employ H-1B workers, employers must complete a Labor Condition Application ("LCA"), specifying the employee's job, location, and wage. In the LCA, the sponsor employer certifies its compliance with wage requirements. These requirements are in place to prevent an influx of cheap foreign labor for professional services and to prevent schemes where by employers lure foreigners to the United States when no work is available for them.

Pursuant to the INA, certification imposes two main wage requirements on H-1B sponsor employers. First, sponsor employers are required to pay H-1B employees the higher of (a) actual wages the employer pays coworkers in related positions or (b) a "prevailing wage" for the specialty. Second, sponsor employers must pay H-1B employees during the periods in which they are nonproductive, or "benched." Benching occurs when an employer temporarily decides to place an H-1B in nonproductive status because of lack of assigned work or lack of a permit or license.

Unfortunately, certification through LCA's has not prevented abuses of the H-1B program. The Department of Homeland Security conducted a study of this program and found that many employers fail to comply with INA requirements by either paying employees below the prevailing wage or not paying for bench time. Some employers will require H-1B employees to find their own work through other third parties when there is no work available through the sponsor employer. In addition, employers have even demanded that H-1B employees submit false requests to take voluntary, unpaid leaves so that a failure to pay the proper wages will not look suspicious to the government. Many employees comply with such demands under the employer's threat of visa cancellation. If you are an H-1B worker and believe that your employer may be in violation of the law, please contact Hawks Quindel, S.C. at (608) 257-0040 or (800) 610-0040 for a free, confidential consultation.

WILL MY PAST HAUNT ME FOREVER?

contact@hq-law.com (HQ-Law) — February 17, 2012

Many employees or potential employees are rightly concerned that their arrest or conviction records could be used against them by current or potential employers. Fortunately, there are laws out there to protect them. Both the Wisconsin Fair Employment Act and the Fair Credit Reporting Act prevent employers from unlawful and discriminatory and use of background checks.

The Wisconsin Fair Employment Act prohibits discrimination on the basis of conviction records. While employers may ask about your conviction record, they must make clear that convictions will only be given consideration if the offenses are substantially related to the circumstances of the particular job. In other words, unless the crime is somehow related to the job you seeking, it cannot be used against you. In addition, employers cannot ask about prior arrests, unless the charges are pending.

Protection is also offered under federal law. The Fair Credit Reporting Act prevents employers from conducting unauthorized background checks. The Act also provides rights to job applicants or current employees if an employer withdraws a job offer or terminates an employee because of information obtained from consumer reporting agencies. First, an employer must obtain written consent from the employee or potential employee before conducting a credit or background check. If the employer intends to use information contained in a report against someone in a hiring or promotion decision, it must inform that person of his rights under the Act. In addition, the employer must disclose the company that supplied the information and give the employee or potential employee notice of his right to dispute the accuracy of the information.

If you feel that an employer has discriminated against you because of your conviction record or unlawfully used a background or credit check, please contact Hawks Quindel, S.C. at (608) 257-0040 or (800) 610-0040 for a free, confidential consultation.

WHAT DO I NEED TO KNOW ABOUT SHORT TERM DISABILITY BENEFITS?

contact@hq-law.com (HQ-Law) — February 15, 2012

A lot of the posts on our blog focus on long term disability benefits. There are many issues, however, that are specific to claims for short term disability benefits. Knowing this information can make a substantial difference when you are seeking short term disability benefits. If you are applying for short term disability insurance benefits you should know that:

1. The Deadline To Appeal Your Benefit Denial May Be Less Than 180 Days
Be mindful of the date by which you need to appeal a denial of benefits. If your short term disability plan is not an ERISA-based plan, you may have less than 180 days to appeal the denial. I have seen plans with deadlines as short as 30 days from the date of the denial letter.

2. Being Denied Short Term Disability Benefits Does Not Bar You From Applying For Long Term Disability Benefits
You may think that because you were denied short term disability benefits that you cannot apply for long term disability benefits. This is not true. Many times, the standard for receiving short term disability benefits is different than the standard for receiving long term disability benefits. Moreover, many employers use different companies to review short term and long term disability benefit claims. If this is the case, your claim will be given a fresh review and will not necessarily be subject to the same analysis as the short term disability claim.

3. If Your Short Term Disability Claim Is Denied, You May Have The Right To Sue for Lost Wages
That's right. If your employer's short term disability plan is a "payroll practice" as opposed to an insurance plan, you can sue for lost wages as opposed to lost insurance benefits. This has several advantages. For example, you will not have to deal with the harsh standards of an ERISA-based claim. Additionally, in Wisconsin, you may be eligible for 150% of your lost short term disability pay. Finally, a judge will order your employer to pay your attorney fees and costs, if you are successful.

Knowing your rights will help you secure the short term disability benefits that you are entitled to. Please contact Hawks Quindel to speak with an experienced short term disability attorney.

THE TRUTH ABOUT SALARIED WORKERS AND OVERTIME

contact@hq-law.com (HQ-Law) — February 13, 2012

One of the first questions I ask during an initial consultation with a potential client is whether he or she earns overtime pay for working more than 40 hours per week. One of the most common answers I hear to this question is "I'm salaried, I'm not entitled to overtime." While it's true that some employees who earn a salary are exempt from overtime (like lawyers, for instance), other employees must be paid overtime even if they receive a salary because they do not meet the requirements to be exempt from overtime pay. In other words, being paid a salary does not mean you are not entitled to overtime pay for hours worked over 40 in a week.

There are some basic rules for salaried employees and an employer's failure to follow them may mean the employee has a claim for back overtime pay.

(1) Salaried employees must be classified under one of the white collar exemptions - administrative, professional or executive (i.e. you can't be a salaried factory worker or receptionist). There are different rules for outside sales employees and certain technology employees.

(2) Salaried employees must make a minimum salary of not less than $455 per week. If the employer pays the employee less than $455 per week, the employee is not paid on a "salary basis" and therefore, the employee is not exempt and must be paid overtime.

(3) Salaried employees must receive the predetermined amount of compensation each pay period and the predetermined amount cannot be reduced because of variations in the quality or quantity of the employee's work.

(4) If the employer makes deductions from an employee's predetermined salary, i.e., because of the operating requirements of the business, that employee is not paid on a "salary basis" and therefore the employee is not exempt and must be paid overtime.

An employer is entitled to make certain deductions even if the employee is salaried, under the following circumstances:

(1) The employee is absent from work for one or more full days for personal reasons other than sickness or disability;

(2) For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness;

(3) To offset amounts employees receive as jury or witness fees, or for military pay;

(4) For penalties imposed in good faith for infractions of safety rules of major significance;

(5) For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.

If your employer is not in compliance with the above rules or if you or someone you know has a question about salary pay or other wage issues, contact Hawks Quindel, S.C. for a free consultation.

KASHOUA YANG SELECTED AS MILWAUKEE BAR ASSOCIATION MESSENGERS SPRING 2012 VOLUNTEER

contact@hq-law.com (HQ-Law) — February 13, 2012

Kashoua Yang is selected as the Milwaukee Bar Association Messenger's Spring 2012 Volunteer. She will be profiled in the "Volunteer Spotlight" section of the MBA's Messenger. Ms. Yang is recognized for her volunteer work in the community. You can read more about Ms. Yang's volunteer work by going to the Milwaukee Bar Association's website.

HALSTEAD WINS REINSTATEMENT OF AFSCME EMPLOYEE IN COLUMBIA COUNTY HIGHWAY DEPARTMENT ARBITRATION

contact@hq-law.com (HQ-Law) — February 10, 2012

On January 6, 2012, Arbitrator Stanley Michelstetter issued an Arbitration Award in favor of AFSCME Local 995, overturning Columbia County's termination of Highway Department employee Tommy Jones. Jones, a long-term employee of the County, had been fired for allegedly assisting other employees in taking wood from a County park for personal use and for not being honest with the County during its investigation of the September 2010 incident. Arbitrator Michelstetter held that the County did not have just cause to terminate Jones and reinstated him to his employment with full back-pay and benefits. The Arbitrator also overturned the County's three-day suspension of Joe Arndt, another AFSCME Local 995 employee the County had accused of wrongdoing in connection with the incident in question.

Attorney Aaron Halstead of Hawks Quindel represented District Council 40, AFSCME, and AFSCME Local 995 in the arbitration proceedings. The Arbitrator's Award can be found here.

PARSONS SECURES WORKERS COMPENSATION BENEFITS FOR WRONGFULLY TERMINATED EMPLOYEE

contact@hq-law.com (HQ-Law) — February 09, 2012

A restaurant cook who was injured while cleaning a deep fryer was wrongfully terminated by her employer. The employer returned the injured worker back to work after the accident, but subsequently fired her based on allegations of food theft.

At hearing, the Administrative Law Judge found that the employee was injured at work and was subsequently terminated. Pursuant to Wis. Stat. Sec. 102.35(3), it was then the employer's burden to show that there was a reasonable basis for terminating the employee. The employer failed to demonstrate that it had a reasonable basis to fire the employee because the owner of the company had no evidence to substantiate the allegations of theft. As such, the Judge ordered the employer to pay the employee her lost wages caused by the wrongful termination.

The employer appealed this decision. On November 30, 2011, the Labor Industry Review Commission (LIRC) has upheld the decision of the Administrative Law Judge. LIRC's decision may be found here.

CHARLTON AND HALSTEAD TO CHAIR STATE BAR CONFERENCE ON EMPLOYMENT LAW

contact@hq-law.com (HQ-Law) — February 08, 2012

Aaron Halstead and Katherine Charlton will co-chair the State Bar of Wisconsin's Annual Employment Law Update in the fall, 2012. Held in both Milwaukee and Madison, the Update brings together lawyers representing both employees and employers, as well as academics and administrative law judges and judges at all levels of state and federal government. Aaron and Kathy also frequently speak at the Update in addition to selecting the program topics and speakers.

JUDGE ADELMAN DISMISSES LAWSUIT AGAINST METROPOLITAN MILWAUKEE FAIR HOUSING COUNCIL, INC. AND THE STATE EQUAL RIGHTS DIVISION AND HUD

contact@hq-law.com (HQ-Law) — February 07, 2012

The Honorable Lynn Adelman recently dismissed a complaint filed in the U.S. District Court for the Eastern District of Wisconsin by two Wisconsin landlords who had been sued for discrimination by a client of the Metropolitan Milwaukee Fair Housing Council, Inc. (MMFHC). The landlords also named as defendants the bona fide home seeker, two Wisconsin assistant attorneys general, two state administrative law judges, two MMFHC employees, the Equal Rights Division of the State Department of Workforce Development, and the U.S. Department of Housing and Urban Development. The landlords filed the complaint in federal court alleging ten claims, including that MMFHC conspired with the state and federal agencies to commit various crimes, that they violated the federal Fair Housing Act, and that they violated various civil rights laws. Judge Adelman granted the defendants' motions to dismiss the complaint, without leave for the plaintiff to amend and refile it. Hawks Quindel lawyers Michele Sumara and Katherine Charlton represented MMFHC in the litigation. Charlton is MMFHC's General Counsel.

FAMILY MILITARY LEAVE PROVISIONS: WHO IS COVERED?

contact@hq-law.com (HQ-Law) — January 31, 2012

With our armed forces coming back from abroad, many families are facing the prospects of caring for our wounded soldiers. This article discusses some of the ways families can take medical leave in order to help their injured loved ones.

Family military leave is now available in two broad categories: 1) to care for an injured services member; and 2) for various short-term exigencies that arise because of a service member's frequently unexpected military obligations. See, 29 CFR Sec. 825.126-27.

Under federal guidelines, an employee is entitled to take up to twenty-six weeks of leave in a single twelve month period to care for a covered service member with a serious injury or illness. Employees may take leave to care for an injured service member who is the employee's spouse, parent, child or for a relative who is the employee's "next of kin," which is defined as the service member's nearest blood relative (aside from those individuals already named). The regulations prioritize who is considered next of kin, but allow a service member to designate another blood relative as his or her nearest blood relative.

A covered service member is defined as a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness. Also included in the definition is a veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness if the veteran was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the five years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.

The "leave year" for military caregiver leave is based on a single 12-month period and begins with the first day the employee takes leave. This "leave year" differs significantly from how a leave year is computed for all other forms of FMLA qualifying leave, including military exigency leave.

Qualifying exigency leave under the FMLA entitles an employee to take up to 12 weeks of leave due to circumstances arising out of the fact that employee's spouse, child, or parent has been called up to active duty for service in a foreign country. Under the regulations, a qualifying exigency can include any of the following: short-notice deployment; military events and activities related to a call to active duty; child care; counseling; rest and recuperation; and post-deployment activities such as reintegration ceremonies.

These guidelines present tools for service members and their families to receive the care they need after sacrificing so much for so many. The information provided above presents general information on employee rights and is not intended to provide legal advice. If you believe that an employer has violated your rights relating to FMLA or other rights, contact one of the employment attorneys at Hawks Quindel, S.C.

OBJECTIVE VS. SUBJECTIVE DOCUMENTATION OF DISABILITY

contact@hq-law.com (HQ-Law) — January 27, 2012

What can you do if your long term disability insurance (LTDI) claim has been denied for lack of "objective" medical evidence To successfully appeal and reverse a denial based on a lack of objective medical evidence, you will need to supply the insurance company with non-subjective proof of your disabling condition. This means, evidence that can be verified through observation or testing, as opposed to your own reports of pain or fatigue. Providing the right type of evidence on appeal is critical for securing your LTDI benefits.

First, do not assume that the insurance company has all the necessary information and medical records. You should provide the insurance company with any medical testing or laboratory work that documents your medical condition, such as blood work, MRIs, X-rays, and CT scans. Next, it is important that the insurance company has all of the medical records related to your treatment. Such records will provide evidence that your doctor objectively diagnosed you based on a physical examination. Additionally, statements from friends, family, or co-workers describing their observations of your condition will also provide objective evidence that you are unable to continue working. Finally, if possible, submitting a functional capacity evaluation (FCE) will provide excellent objective evidence of your disability.

You may only have one opportunity to provide the insurance company with the necessary documentation to support your claim. Once the administrative record is closed, you will not be allowed to provide any further proof of disability. For more information about the need to file a strong internal appeal, see here.

Working with an experienced LTDI attorney can even your odds against the insurance company. It is important to know what documents the insurance company is looking for. Providing the right type of evidence will provide you with the best chance of appealing and reversing a denial of your LTDI claim.

Additionally, as discussed in a previous blog post you only have 180 days to appeal an ERISA-based LTDI claim denial and potentially less for a non-ERISA based claim. If you have questions regarding your LTDI claim, please contact an attorney at Hawks Quindel to discuss your rights.

SHOULD I BE PAID FOR MY INTERNSHIP?

contact@hq-law.com (HQ-Law) — January 25, 2012

Finding a job in today's economy is not easy, however it does not mean you should work for free. In order to get a foot in the door, many people work as interns. This work can provide employees valuable real world experience that could lead to future employment. In some industries, internships are seen as an essential first step to a successful career. But should you be paid while working as an intern

That depends. In order for an employer not to pay its interns, the internship must be for the benefit of the intern, not the employer. The Department of Labor (DOL) recently issued the following test to determine whether an internship may be unpaid. In order for the internship to be unpaid, all six of the following criteria must be met:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training, which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Unless all six of these factors are met, an employer must pay its interns and meet the FLSA's minimum wage and overtime requirements.

If you believe that you should have been paid for your work as an intern, please contact Hawks Quindel at 608/257-0040 to speak with an experienced wage and hour attorney.

WHAT IF I CANT RETURN TO WORK AFTER MY MEDICAL LEAVE OF ABSENCE?

contact@hq-law.com (HQ-Law) — January 24, 2012

Most employees have heard about the Family & Medical Leave Act (or, "FMLA"). You or someone you know may even have exercised their rights under this law.

Under the Wisconsin FMLA, eligible employees may take up to 2 weeks of leave for their own serious health condition. Under the federal FMLA, employees may take up to 12 weeks of leave for their own serious health condition. But what happens when an employee is unable to return to work at the conclusion of his medical leave Some guidance follows.

Under the federal FMLA, "an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence." Of interest here is the following limitation on an employee's right to reinstatement: "If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition or an injury or illness also covered by workers' compensation, the employee has no right to restoration to another position under the FMLA. The employer's obligations may, however, be governed by the Americans with Disabilities Act (ADA), as amended. See Sec. 825.702, state leave laws, or workers' compensation laws." 29 C.F.R. Sec. 825.216(c).

Many employers erroneously inform employees nearing the end of a medical leave that they must return "without restrictions." Generally speaking, this requirement violates the Americans with Disabilities Act and the Wisconsin Fair Employment Act. An employee may have "restrictions," caused by a disability, and thereby need an accommodation upon returning to work. As with any disabled employee, the employer must endeavor to reasonably accommodate the employee's disability.

In Wisconsin, a leave of absence may be a reasonable accommodation under the state's Fair Employment Law, Wis. Stat. Sec. 111.31, et. seq.; Target Stores v. L.I.R.C., 217 Wis. 2d 1, 576 N.W. 2d 545 (1998). The employer's duty to provide a reasonable accommodation does not disappear upon the conclusion of an FMLA leave. Of course, the duty to accommodate does not arise unless an employee is "disabled" under the Americans with Disabilities Act or the Wisconsin Fair Employment Law.

Employees may wonder whether they should request a definite period of time for an unpaid, post-FMLA leave. There is no set answer to this question. The length and nature of any leave of absence following FMLA leave must focus on whether the leave would pose an "undue hardship" on the employer's business. This is an individualized analysis. Employees should not accept an employer's decision to terminate employment without considering whether an extended leave will effectively accommodate a disabled employee without presenting an undue hardship.

If you are nearing the end of your FMLA leave and your employer is requiring you to return to work without any restrictions, the employment attorneys of Hawks Quindel, S.C. may be able to assist you with understanding and exercising your rights.

WHAT IF MY EMPLOYER HAS NO WORKERS COMPENSATION INSURANCE?

contact@hq-law.com (HQ-Law) — January 19, 2012

Wisconsin law requires employers of all sizes, with few exceptions, to maintain worker's compensation insurance covering all of their employees. Regrettably, some employers, in order to cut corners financially, fail to purchase the required insurance. In order to protect employees of these uninsured employers, the State of Wisconsin has established the Wisconsin Uninsured Employers Fund ("the UEF"). When an employee is injured in the course of his or her duties with an uninsured Wisconsin employer, the Fund will pay the employee all benefits owed, as well as all injury-related medical bills. Such a claim is made through a separate administrative process, administered by the UEF, and requires the filing of some documents different that are different than in a normal worker's compensation proceeding.

Hawks Quindel's worker's compensation attorneys are experienced in and familiar with the requirements the UEF imposes on an employee making a claim against the uninsured employers fund. We have handled such claims in many parts of the state and will be happy to discuss your claim with you if you've been injured while working for an uninsured employer.

SUPREME COURT ADDRESSES RELIGIOUS EMPLOYEES RIGHTS

contact@hq-law.com (HQ-Law) — January 18, 2012

In Hosanna "" Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S.____ (2012), the United States Supreme Court on January 11, 2012, issued a decision construing the "ministerial exception", which bars most employment-related lawsuits by employees performing religious functions, to apply to a teacher at a religious elementary school who taught both secular curriculum and daily religion classes. Although courts have generally held that federal employment discrimination statutes do not apply to religious leaders performing religious functions, the U.S. Supreme Court voted unanimously in an opinion authored by Chief Justice Roberts to apply the "ministerial exception" to teachers at a religious elementary school. The intent of the "ministerial exception" is to allow religious organizations to prefer members of their own religion.

The EEOC and teacher Cheryl Perich had appealed to the Sixth Circuit Court of Appeals, a district court's grant of summary judgment in favor of the religious school, in an action alleging discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. Sec.12117(a) (the ADA). The Sixth Circuit vacated the District Court's order and remanded. The U.S. Supreme Court granted certiorari.

Hosanna-Tabor classified its school teachers into two categories, "called" and "lay". "Called" teachers had to complete certain academic requirements, including a course of theological study. If "called", the teacher received the formal title "Minister of Religion, Commissioned". "Lay" teachers were not required to be trained by the Synod or even to be Lutheran. "Called", and "lay" teachers generally performed the same duties, but "lay" teachers were hired only when "called" teachers were unavailable.

After Perich completed the required training, Hosanna-Tabor asked her to become a "called" teacher. She agreed. She taught secular subjects and a religion class, and led her students in daily prayer. She subsequently developed narcolepsy and missed the first part of a school year. When she was ready to return to work, Hosanna-Tabor fired her, saying that they had replaced her with a "lay" teacher. Perich filed an ADA complaint with the EEOC.

Title I of the ADA includes a "ministerial exception" which allows religious entities to give preference in employment to individuals of a particular faith. Congress made clear when it enacted the ADA that it was a narrowly-drawn religious exemption to protect the First Amendment guarantee of religious freedom. The applicable Code of Federal Regulations provisions recognize that a religious entity may give preference in employment to a particular religion, but it may not discriminate against an individual who satisfies the religious criteria because that individual is disabled. 29 C.F.R. Pt. 1630, App. Sec.1630.16(a).

The "ministerial exception" bars an employment discrimination claim if the employer is a religious entity and the employee is a "ministerial employee". There was no dispute in this case that Hosanna-Tabor satisfied the first element. What was in dispute is whether or not Perich served as a "ministerial employee". The Sixth Circuit followed the majority of courts of appeals who determined that parochial school teachers, who teach primarily secular subjects, do not qualify as "ministerial employees" for purposes of the "ministerial exception". The Sixth Circuit focused on primary duties, not titles, and the fact that the church did not require its teachers to be Lutherans.

The U.S. Supreme Court dismissed the ADA complaint, specifically saying that the "ministerial" exception is not limited to the head of a religious congregation. The Supreme Court criticized the Sixth Circuit for failing to see any relevance in the fact that Perich was a commissioned minister, and placed too much emphasis on Perich's performance of secular duties and that "lay" teachers performed the same religious duties as Perich.

The U.S. Supreme Court determined that because Perich was a minister within the meaning of the ministerial exception, the First Amendment required dismissal of the employment discrimination claim against her employer. In a seeming expansion of the scope of the exception, the court said that the purpose for the exception was not limited to safeguarding a church's decision to fire a minister to only when it was made for a religious reason.

If you are employed by a religious entity and are interested in learning more about your employment rights, please contact Hawks Quindel to speak with an experienced employment law attorney.

FILE THAT LAWSUIT AND YOURE FIRED

contact@hq-law.com (HQ-Law) — January 17, 2012

Employee Protections From Employer Retaliation

Every employee has the right to file a claim or participate in a lawsuit for wage violations. However, individuals are often nervous or apprehensive about filing a lawsuit or even talking to their Human Resources Department or an administrative agency, such as the Department of Labor, because they are afraid that they will lose their job.

If your employer doesn't pay you minimum wage, overtime wages for hours worked over 40, fails to pay you altogether or engages in other types of illegal pay practices, you are entitled to recover those wages under both state and federal wage laws and your exercise of those rights should not subject you to retaliatory acts from your employer. The following are examples of acts that could be considered retaliatory if done in response to your participation in a federal or state wage investigation, complaint, or lawsuit:

(1) Discharging a current employee because the employee filed a complaint under the Fair Labor Standards Act (FLSA) or Wisconsin law;

(2) Discharging a current employee because the employee testified in a proceeding related to the FLSA or Wisconsin law;

(3) Disparaging a former employee in conversations with future employers because the employee filed a complaint or participated in a proceeding related to the FLSA or Wisconsin law;

(4) Discharging the spouse of an employee who works for the same company and files a complaint or participates in a proceeding related to the FLSA or Wisconsin law;

(5) Discharging a current employee for contacting an administrative agency to inquire about potential wage violations, even if the employee did not file a formal complaint;

(6) Harassing an employee who filed a complaint or otherwise participated in a proceeding related to the FLSA or Wisconsin law;

(7) Taking away shifts or work hours from an employee who filed a complaint or otherwise participated in a proceeding related to the FLSA or Wisconsin law;

(8) Reducing the pay of an employee who filed a complaint or otherwise participated in a proceeding related to the FLSA or Wisconsin law;

(9) Reassigning an employee who filed a complaint or otherwise participated in a proceeding related to the FLSA to another jobsite; and

(10) Assigning additional work hours or tasks to an employee who filed a complaint or otherwise participated in a proceeding related to the FLSA.

If you or someone you know has a question about wage violations, contact Hawks Quindel at 414-271-8650 to speak with an experienced wage and hour attorney for a free consultation. Don't be afraid to exercise your rights!

WHEN AN EMPLOYER ISNT PAYING LEGAL WAGES, EMPLOYEES HAVE THE RIGHT TO JOIN TOGETHER

contact@hq-law.com (HQ-Law) — January 11, 2012

If you have been subject to an illegal pay practice, you have the right to pursue your legal claims collectively with your fellow employees. Put another way, when an employer fails to pay a group of employees, they have the right to join together and file a lawsuit to recover back pay owed and to correct the pay practice going forward. Many employers had tried to force their employees to sign agreements that would bar them from pursuing a group action against the employer.

On January 6, 2012 the National Labor Relations Board (NLRB) issued a ruling making it clear that workers have the right to pursue legal claims as a group. The D.R. Horton, Inc. decision stated that employers could not force employees to sign agreements forcing them to pursue their unpaid wage claims individually. This decision is a victory for workers because it allows them to join together when their employer is not paying full wages to the entire group of employees. Often, individual employees would not bring an action against their employer if they had to do so individually.

If you believe that you are not being paid correctly by your employer, please contact Hawks Quindel at 608/257-0040 to speak with an experienced wage and hour attorney.

MANY EMPLOYEES IN THE FINANCIAL SERVICES INDUSTRY ARE ENTITLED TO OVERTIME WAGE PAY

contact@hq-law.com (HQ-Law) — January 09, 2012

Federal and state overtime laws exempt certain employees from overtime wage pay based primarily on their job duties. Oftentimes, employees assume that all highly compensated employees are exempt from overtime wage pay; however that is not the case. A primary example of this is overtime wage pay misclassification occurs in the financial services industry.

The financial services industry has created a myriad of job titles for employees who perform a variety of duties, for example stock broker, mortgage loan officer, mortgage loan representative, loan processor, financial services consultant, and other, similar titles that imply an administrative function. Employers often misclassify these employees as exempt from the requirements and protections of the wage and hour laws based on a misunderstanding of the "administrative" exemption from overtime wages.

Under the administrative exemption, an exempt employee's primary job duty must be "the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers." To be directly related to the management or general business operations of the employer, the work must be "directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment." The administrative exemption is limited to employees whose work is in serving the business itself (e.g. in accounting, quality control, human resources).

In the financial services industry, job titles often imply an administrative function when, in fact, the primary job duty is production (selling) for the business, not administering the business. For example, a mortgage loan officer's job duties can include contacting potential customers or receiving contacts from potential customers. They collect required information from customers, run credit reports and identify and assess loan products based on that information. They meet with potential customer and compile loan documents. These activities are not performed in the administration of the business itself, but rather are the business of the employer. These duties are in production of business, not administration.

Similarly, stockbrokers buy and sell orders of shares and securities, keep abreast of the market, give advice to their customers about financial opportunities and manage customers' portfolios. Their job duties are not in administering the business of their employer, but are in the production of the business of the employer. Stockbrokers, financial services advisors and the like are not exempt employees if their primary duties are related to conducting the business of and producing income for the employer.

Thus, many financial services industry employees are entitled to overtime pay at 1.5 times their regular hourly pay for all hours worked in excess of 40 per week. Based upon an analysis of their job duties, they may not be exempt from the wage and hour requirements of the law, and may be misclassified. If you work in the financial services industry and believe that your position has been misclassified as exempt, contact an experienced attorney to discuss your remedies.

SUPERIOR SATELLITE TECHNICIANS SETTLE UNPAID WAGES SUIT

contact@hq-law.com (HQ-Law) — January 04, 2012

Attorneys William Parsons and David Zoeller were a part of a litigation team representing Superior Satellite technicians in their unpaid wage lawsuit. Plaintiff's counsel filed for preliminary approval of a class action settlement on December 23, 2011. The settlement of $750,000 repays the technicians for alleged unpaid overtime wages, alleged unlawful deductions, as well as attorney's fees and costs. If you worked as a technician for Superior Satellite at any time during the past three years and have any questions regarding the settlement, please call (800) 610-0040 for more information.

WORKERS WHO FILE WAGE COMPLAINTS ARE PROTECTED FROM RETALIATION

contact@hq-law.com (HQ-Law) — January 03, 2012

Both Wisconsin law and the federal Fair Labor Standards Act (FLSA) protect employees from acts of retaliation because they filed a complaint to recover unpaid wages.

The Supreme Court of the United States recently clarified the scope of retaliation protection offered under the FLSA. In an opinion issued on March 22, 2011, the Court eliminated any ambiguity regarding whether an employee was required to file a written complaint in order to trigger the Act's protection. Kasten v. Saint-Gobain, 131 S.Ct. 1325. The court held that oral complaints are sufficient to trigger retaliation protection; however the Court did not resolve the issue of whether the complaint had to be filed with a government agency to trigger protection.

The United States Department of Labor has recently offered its own guidance about the scope of retaliation protection through issuance of a new DOL fact sheet: http://www.dol.gov/whd/regs/compliance/whdfs77a.htm. The DOL adds that most courts offer protection for complaints that are made internally (to the employer) as well as complaints made to government agencies. The DOL also notes that retaliation protection extends to former employees who may suffer retaliatory acts. If you feel that you have suffered from retaliation from filing a complaint about your wages, you may be able to bring a lawsuit to recover damages, including twice the amount of back wages you are owed. If you have questions about this post or feel that you were the victim of retaliation, please contact an attorney at Hawks Quindel, S.C.

MY DISABILITY PLAN SAYS WHAT!? WHY WHAT YOU DONT KNOW COULD HURT YOU.

contact@hq-law.com (HQ-Law) — December 30, 2011

If you have disability coverage through your employer, you may assume that should you become injured or permanently disabled, your insurance will protect you from financial hardship. If your belief is based on communications with an insurance representative or on the two-page brochure you have stored away in a file, your understanding may be wrong. When it comes to employer-sponsored disability insurance benefits, the terms of the plan are what ultimately matter.

Most often, when people initially obtain disability insurance coverage, they receive a copy of a document entitled the summary plan description or "SPD." The SPD is summary of the information included in the plan and of how the plan operates. The purpose of the SPD is to provide a clear and simple description of the plan. Because this document is merely a summary, it does not include all the information in the plan itself. It is not legally binding, and if you become injured or disabled, it does not govern whether you will receive disability benefits.

The Plan Document is a much larger document (usually 20 or more pages), which includes definitions of key terms, eligibility requirements, benefit offsets, exclusions, limitations, procedures for appeal, and more. The language of the Plan Document determines your benefit entitlement, and the plan administrator must consistently apply these terms to all plan participants.

Recent case law suggests that even if information in the SPD is ambiguous, or arguably inconsistent with the plan language itself, courts will not enforce the terms of the SPD. The summaries do not modify the plan.

The best method for determining the extent of your disability insurance coverage is to request a complete copy of the Plan Document from the plan administrator or your employer's human resources department. You have a right to this document within 30 days of your request. If you have any questions about your short or long term disability benefits, please contact an attorney at Hawks Quindel.

SAKS FILES LAWSUIT TO PROTECT VOTERS RIGHTS

contact@hq-law.com (HQ-Law) — December 19, 2011

UPDATED "" Video coverage of Mr. Saks' press conference may be found here. Coverage from Wisconsin Public Radio may be found here.

On December 16, 2011, Attorney Richard Saks filed a lawsuit on behalf of the Milwaukee Branch of the NAACP and Voces de la Frontera in Dane County Wisconsin Circuit Court. The lawsuit challenges 2011 Wisconsin Act 23, aka, Wisconsin's Photo ID Law. The lawsuit asks the court to declare the law unconstitutional because it violates the right to vote under the Article III, Section 1 of the Wisconsin Constitution which explicitly and broadly guarantees all eligible Wisconsin residents the right to vote, an explicit guarantee not even present in the U.S. constitution.

The NAACP/Voces lawsuit follows the identical roadmap that Missouri voters used to successfully overturn the Missouri photo ID law in 2006, when the Missouri Supreme Court invalidated photo ID under the State of Missouri Constitution's right to vote. See Weinschenk v. Missouri, 203 S.W.3d 201 (2006).

NAACP President James Hall stated: "Hundreds of thousands of otherwise eligible Wisconsin voters lack acceptable photo ID under the new law. A very large number of these are African-American and Latino voters in Milwaukee. The photo ID law compels hundreds of thousands of such voters to invest numerous hours, and days in many instances, dealing with various government agencies and bureaucracy just to get the documents like birth certificate, social security cards, and other documents that are required to obtain a photo ID. Many voters also pay significant amounts for these documents, especially birth certificates"

Twelve voters who have been forced to incur unreasonable amounts of time and expense attempting to obtain their photo IDs are also plaintiffs in the NAACP/Voces lawsuit. The individual plaintiffs have spent many days traveling and waiting at various government agencies.

Plaintiff Mary McClintock is a wheelchair-bound elector who had to take three trips via para-transit vans to the downtown DMV offices to obtain her photo ID to vote. Ms. McClintock stated: "I have voted in every election that I can remember. This is crazy that I would have to make three separate trips downtown just to be able to do what I have been doing my entire life."

Plaintiff Danettea Lane, a mother and head of household of four children whose sole source of income is a monthly W-2 check in the amount of $608, had to pay $20 for a birth certificate to the County and also make four different trips to the DMV offices to finally obtain her photo ID in order to vote.

Another individual plaintiff, Ricky Lewis, who is an honorably discharged U.S. Marine, explained his unsuccessful odyssey to obtain photo ID this way:

"I have tried, and tried to get a photo ID so I can vote. I first came right here at the DMV to get my photo ID last summer. I showed them all kinds of ID. I showed them photo IDs "" one from the V.A and one from Milwaukee County. I also showed them my discharge papers from the Marines. I showed them a utility bill. They said it wasn't enough and they told me I needed a birth certificate and social security card. So, I went to the social security office, but they couldn't give me a social security card because I didn't have a birth certificate. So I went over to the courthouse, and they didn't have my birth certificate. So I wrote a letter to Madison and the vital records office, and sent them a check for $20. They sent me back a birth certificate. But guess what. It had the wrong name "" it had my name as Tyrone DeBerry. Tyrone is my middle name, and DeBerry is my mom's maiden name. They said if you want to get your birth certificate corrected, you have to file a lawsuit in circuit court. Well, I am not gonna do that. I am gonna stand up and fight with the people of Milwaukee, and the NAACP, and protect everyone's right to vote and get rid of Gov. Walker's Photo ID law."

ARE YOU BEING FOLLOWED? SURVEILLANCE AND LONG TERM DISABILITY INSURANCE BENEFITS

contact@hq-law.com (HQ-Law) — December 15, 2011

When individuals apply for disability benefits, many insurance companies will hire private investigators to perform surveillance.

Insurance companies do this in an effort to prove that you are not really as disabled as your doctor and you claim. This can be an alarming experience. While it is legal for insurance companies to engage in some form of limited surveillance, it is important for you to know your rights.

First, no private investigator can enter your property without your permission. If a private investigator trespasses on your property, contact the authorities and make a record of the unlawful activity. You are allowed to turn the tables on the investigator and record his behavior.

Second, just because you have made a claim for disability benefits does not mean that you have to stop living your life. If you believe you are under surveillance, you are able to continue going about your normal daily activities. As always, it is important to follow your doctor's restrictions. This is especially true if you are under surveillance because any deviation from those restrictions will be used as evidence against your claim for benefits.

Finally, you are not obligated to speak to an investigator or to provide the investigator with any information. If the investigator attempts to speak with you, you have the right to decline to do so.

If you have questions regarding your short or long term disability benefit claim, please contact an attorney at Hawks Quindel to discuss your rights.