HQ-Law Blog

US FEDERAL COURT NIPS WALKERS WINGS: JUDGE WILLIAM CONLEY STRIKES DOWN TWO ONEROUS PROVISIONS OF ACT 10

contact@hq-law.com (HQ-Law) — April 02, 2012

On Friday, March 30, 2012 Judge William Conley in the federal district court for the Western District of Wisconsin found significant parts Act 10, Wisconsin's radical reform of public employees' right, unconstitutional and extreme:

The Court found the requirement for annual recertification votes in which 51% of the employees must vote every year to recertify - an absolute majority rather than a majority of those voting - to be unprecedented. The state provided no rational basis for imposing this extreme requirement on general employees but not on public safety employees who retain bargaining rights. On this basis, the Court ruled that the annual recertification requirement is unconstitutional and cannot be enforced.

The Court also ruled unconstitutional Act 10's prohibition on voluntary dues deduction for general public employees. The Court noted that dues deduction was prohibited for all general employee unions, none of which endorsed Walker in the 2010 election. Dues deduction remains permitted for public safety employees and, as the Court notes, "all of the unions that endorsed Walker fall within the public safety category." As the Court wrote, "...the State's interest in avoiding the reality or appearance of favoritism or entanglement with partisan politics - is the very reason this court cannot uphold the State of Wisconsin's apparent, if not actual, favoritism and entanglement in partisan politics by discriminating in favor of fundraising efforts on behalf of public safety unions over general employee unions."

The Court did not find the restriction on collective bargaining to everything except total base wages for general employees to be a denial of equal protection and this portion of the law is not enjoined.

Hawks Quindel Attorneys Timothy Hawks, Barbara Quindel and Aaron Halstead served as counsel for Plaintiff Unions AFT "" Wisconsin, SEIU Healthcare and AFSCME, District Council 40. Additional plaintiffs included WEAC, AFSCME District Councils 24 and 40 and the Wisconsin AFL-CIO. Significant contributions were also made by Attorneys Richard Saks, Michele Sumara, and Jeffrey Sweetland.

The Order of the Court is subject to appeal in the 7th Circuit Court of Appeals in Chicago.

PHARMACEUTICAL SALES REPRESENTATIVE OVERTIME CASE GOES TO THE SUPREME COURT

contact@hq-law.com (HQ-Law) — April 02, 2012

Are sales representatives from pharmaceutical companies entitled to overtime Two recent cases have given different answers to that question. The Second Circuit Court of Appeals recently ruled in the In Re Novartis Wage & Hour Litigation case that such sales representatives are entitled to overtime under the Fair Labor Standards Act (FLSA). The Ninth Circuit Court of Appeals, however, came to the opposite conclusion in the Christopher v. SmithKline Beecham case.

The different results from these courts turned on their view of an overtime exemption for "outside sales" employees. Under the FLSA, employees who make sales for their employers that will be paid for by the customer and who work largely outside of the employer's office are not entitled to overtime. Because doctors do not actually buy pharmaceutical products from the sales representatives, the Second Circuit concluded that these employees are entitled to overtime wages. The Ninth Circuit took a more simplistic view of the issue, holding that the representatives were performing a sales function and, therefore, not entitled to overtime pay. The Department of Labor has weighed in, and has stated that it believes that pharmaceutical sales representatives are entitled to overtime pay.

On April 16, 2012 the Supreme Court will hear oral arguments in the Christopher v. SmithKline Beecham case. The Supreme Court may, once and for all, answer this question. Stay tuned for an update on the result of this case.

If you believe that your employer has not properly paid you, please contact one of Hawks Quindel's wage and hour attorneys for a free consultation. Documents that would be helpful to evaluate your claim include:

Paystubs
Documentation of the hours you worked
Employee policies or personnel manuals

HALSTEAD AND HAWKS FILE ACTION ON BEHALF OF MONONA LIBRARY EMPLOYEES

contact@hq-law.com (HQ-Law) — March 29, 2012

On March 23, 2012, Attorneys Aaron Halstead and Timothy Hawks filed a declaratory judgment action in Dane County Circuit Court on behalf of AFSCME, Local 60, members employed in the City of Monona's library bargaining unit. The lawsuit alleges that the Library Board has committed prohibited practices under the Municipal Employment Relations Act, by refusing to honor the obligations its obligations under the parties' 2012-2013 agreement, signed in May 2010. The Board alleges that 2011 Wisconsin Act 10 invalidates that agreement, despite the fact that it was not signed over a year before Act 10 became effective (June 29, 2011). Local 60 seeks a finding that the Board has engaged in prohibited practices, and a declaration that the parties' agreement is in full force and effect.

The circuit court complaint can be found here.

ATTORNEY YANG HELPS LAUNCH THE OPENING OF THE HMONG LEGAL CLINIC IN MILWAUKEE

contact@hq-law.com (HQ-Law) — March 28, 2012

The Hmong Legal Clinic is set to re-open on Saturday, April 14, 2012. It initially opened on October 22, 2011 with a turn-out of 15 to 20 individuals. After the October 22, 2011 opening, future sessions were postponed to enable the Hmong Community to tailor the Clinic to the Community's needs. Although, the Clinic is not the first of its' kind, it is unique in that most of the attorneys who will be staffing the clinic are Hmong. The Clinic will serve any individual in the Milwaukee metro area and surrounding areas. Individuals interested in learning more about the Clinic can read the informational flyer here.

KEY COMPONENTS TO SEVERANCE AGREEMENTS, FROM AN EMPLOYEES PERSPECTIVE

contact@hq-law.com (HQ-Law) — March 26, 2012

Hawks Quindel attorneys frequently advise clients about the terms of a severance or separation agreement. Where an employers wants to end the employment of an employee, typically in middle or upper management, they may offer that employee a severance or separation package that includes financial considerations that the employer is not otherwise contractually obligated to pay to the employee, but which they are offering in exchange for the employee agreeing to do, or not do, various things that will benefit the employer, and which the employee would not otherwise be obligated to do or not do.

This article identifies the most common components of a severance or separation agreement, and raises the issues about which employees should be concerned as they negotiate the terms of an agreement.

Termination v. Resignation

This is an important choice for an employee because calling the end of employment a "resignation" will usually mean that the employee will be ineligible to receive unemployment insurance after the severance benefits run out if the employee is then unemployed but is actively looking for work. An employee should carefully balance the benefit of characterizing the end of employment as a "resignation" as the employee searches for new employment, with the likely ineligibility for unemployment insurance benefits. An employer will usually agree to whichever characterization the employee prefers unless the employee initiated the resignation.

Amount of Severance

Because there is no state or federal statute that governs the amount of severance to be paid, so it is a matter of negotiation unless the employee has an employment agreement that states what is to be paid or unless the employer's personnel policies provide a schedule of severance benefits. The general rules of thumb in southeastern Wisconsin are that many employers believe that one week per year of service is reasonable, and attorneys representing employees think that one month per year of service is reasonable. There is a general consensus that a one year cap is appropriate unless there is significant value to the release of all claims, which is discussed below. Sometimes, employers are willing to pay some additional months that are tied to whether or not the employee has obtained new employment.

Agreement to Not Sue the Employer

One universal term of severance or separation agreements is a provision preventing the employee from ever suing the employer for anything related to their employment, with the exception of filing claims for unemployment insurance or worker's compensation, or for breach of the severance or separation agreement.

Confidentiality

Employers usually want employees to keep the terms and existence of the severance or separation agreement confidential and to disclose it only to their immediate family, accountant and attorney. They also want employees to agree to keep the confidential, proprietary and trade secrets learned by the employee during employment confidential. Attorneys representing employees usually request that the request to keep the terms and existence of the agreement confidential, mutual, and to have exceptions for both requirements for the employees' receipt of a court order to testify that might otherwise require the employee to disclose such information under oath.

Nondisparagement

Employers usually want a promise that the employee will not make public comments about the employer that are likely to harm the employer's reputation. Most severance or separation agreement include a paragraph that sets out a standard of behavior for the employee, that will constrain what an employee may say, in any forum or medium, about the employer. Agreeing not to disparage the employer is the most commonly-used standard, but some employers propose a "negative" or "harmful to the employer" standard. Employees should be careful about these provisions because they typically have no time limit. The provision should be made mutual and be subject to the receipt of a court order to testify.

We recommend that an employee who receives a severance or separation agreement, or who is considering leaving their employment and wants to propose to their employer that they negotiate one, consult with one of the Hawk Quindel employment lawyers concerning the specific provisions of an employee's agreement.

TODOS LOS TRABAJADORES, SEAN O NO SEAN DOCUMENTADOS, TIENEN EL DERECHO DE SER PAGADOS POR SU TRABAJO A BASE DE LA LEY.

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

La Acta Federal de Igualdad en labor de Los Estados Unidos, requiere que los empleadores les paguen a sus trabajadores por todas las horas trabajadas y tambin todas las horas trabajadas de ms de 40 en una semana a tiempo y medio. La ley cubre a todos los trabajadores, ya sean documentados o no.

Algunos empleadores que contratan a trabajadores indocumentados saben que pueden exigirle a los trabajadores, trabajar ms de 40 horas en una semana y que pueden pagarles mucho menos del salario mnimo debido a que estos empleados tienen miedo de quejarse a base de su situacin inmigratorio. Cuando los trabajadores indocumentados tratan de ejecutar sus derechos de ser pagados por los salarios mnimos y horas extras, a veces son amenazados por sus empleadores con llamar las autoridades de inmigracin o con terminacin de su empleo. Estas amenazas realmente detienen a los trabajadores de ejecutar sus derechos bajo la ley.

El Departamento de Labor (DOL), que impone la ley, sabe que los trabajadores indocumentados estn especialmente sujetos a estas barreras para ejecutar sus derechos, y es plice del DOL ejecutar la ley, sin importancia su situacin inmigratoria. Los trabajadores tambin tienen derecho a iniciar juicios para ejecutar sus derechos y los de sus compaeros de trabajo de los salarios mnimos y horas extras. Los tribunales han reconocido que las represalias de los empleadores, ya sea en el lugar de trabajo o en las tcticas agresivas de litigio, no puede ser utilizado para "enfriar" la ejecucin de los derechos a los salarios adeudados de sus trabajadores.

La ley sobre estndares laborales en las acciones de clase son juicios en los cuales uno, dos o ms trabajadores hace demanda a nombre de todos los dems trabajadores de ese empleador que tienen reclamos similares, es decir, que fueron tratados en la misma forma injusta. Una vez que el tribunal est de acuerdo, otros trabajadores pueden "opt-in" o entrar a la demanda para ejecutar sus derechos. Cuando los empleadores desalientan a los trabajadores de elegir a participar en el juicio con la amenaza de despedirlos o llamar las autoridades de inmigracin, esta es una forma de accin incorrecta descrita anteriormente. En estas situaciones, hay fuerza en nmeros. Es ms difcil tomar represalias contra 100 trabajadores de lo que est en contra de uno.

ALL WORKERS, WHETHER OR NOT YOU HAVE DOCUMENTS, HAVE THE RIGHT TO BE PAID FOR YOUR WORK UNDER THE LAW.

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

The United States Fair Labor Standards Act requires that employers pay their workers for all hours worked, and for overtime (time and a half) for all hours over 40 worked in a week. The law covers all wage workers, whether they are documented or not.

Some employers who employ undocumented workers know that they can require those workers to work far more than 40 hours in a week and that they can pay much less than minimum wage because these employees are afraid to complain due to their immigration status. When undocumented workers try to enforce their rights to be paid minimum and overtime wages, they are sometimes threatened by their employers with calling immigration authorities or with termination of their employment. These threats seriously hold back workers from enforcing their rights under law.

The United States Department of Labor (DOL), which enforces the law, knows that undocumented workers are particularly subject to these barriers to enforcing their rights, and it is DOL policy to enforce the law without regard to immigration status. Workers are also entitled to bring lawsuits to enforce their own and their fellow workers' rights to minimum and overtime wages. Courts have recognized that retaliation by employers, whether in the workplace or in aggressive litigation tactics, may not be used to "chill" workers' enforcement of their rights to legally due wages.

Fair Labor Standards Act class actions are lawsuits in which one, two or more workers sue on behalf of all other workers of that employer who have similar claims, that is, who were treated in the same unfair manner. Once the court agrees, other workers can "opt-in" to enforce their rights. When employers discourage the workers from choosing to participate in the lawsuit by threatening to fire them or call immigration authorities, that is a form of the kind of improper action described above. In these situations, there is strength in numbers. It is harder to retaliate against 100 workers than it is against 1.

OFFDUTY CONDUCT MAY AFFECT YOUR ELIGIBILITY FOR UNEMPLOYMENT BENEFITS

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

Individuals may be surprised to learn that failed drug tests, even if they are the result of conduct occurring outside of employment, could put their unemployment benefits at risk. Given recent statutory changes and a case pending decision from the Wisconsin Supreme Court, it is important for employees to know how, if at all, positive drug tests may impact their eligibility for unemployment compensation.

I. POSITIVE DRUG TESTS AND UNEMPLOYMENT BENEFITS, GENERALLY

Terminations resulting from positive drug tests may disqualify you from benefits. Similarly, as of June 30, 2011, if you are unable to accept an offer of work due to a failed drug test, the Unemployment Insurance Division may deem you ineligible for benefits for at least four weeks. Wis. Stat. Sec. 108.04(8).

If your unemployment is the result of a positive drug test, the Department will have to make a series of findings before disqualifying you from benefits. For instance, the Department will ask,

- Did the employer have a policy that prohibited both on-duty and off-duty use of drugs

- Was the policy set forth in writing

- Was the policy reasonable

- Did the policy explain the consequences of a positive test result

- Were you aware of the policy

Furthermore, a positive test alone is not sufficient proof that you violated your employer's drug-free workplace policy and that you are ineligible for unemployment benefits. The employer must provide proper documentary evidence showing that the laboratory test was accurate and valid. In the absence of expert testimony, the testing laboratory must complete the Department's test analysis form. Without such proof, the employer will likely fail to show that the employee engaged in misconduct.

II. THE WISCONSIN SUPREME COURT IS CONSIDERING WHETHER ACTIVITIES OCCURING ON INDEFINITE LAYOFF COULD AMOUNT TO "MISCONDUCT CONNECTED WITH EMPLOYMENT"

On March 6, 2012, the Wisconsin Supreme Court heard oral arguments in Michael J. Waldvogel Trucking v. Labor & Industry Review Commission, Case No. 11AP329-FT. The issue before the Court was whether an employee committed "misconduct," as defined by Wis. Stat. Sec. 108.04(5), making him ineligible for unemployment benefits when the individual's termination was the result of a positive drug test administered after indefinite layoff. (It should be noted that the case arose prior to the enactment of section 108.04(8)(b)1.b of the Wisconsin statutes stating, in relevant part, "an employee's failure to accept an offer of work . . . includes the employer's withdrawal of or failure to extend an offer of work due to a positive test result.")

The employer argued that all misconduct that destroys an individual's eligibility to return to a job may be deemed misconduct connected with employment, even if the misconduct occurs during an indefinite layoff.

The employee argued that under the Indefinite Layoff Rule as articulated in the case A.O. Smith Corp. v. DILHR, 88 Wis. 2d 262, 269-70 (1979), a person who is on an indefinite layoff is not considered to be in an employment relationship and therefore cannot commit misconduct connected with employment when no employment relationship exists.

The Court's decision could expand the definition of misconduct if the Court determines that an employer's work rules or policies still have some bearing on a laid-off employee's conduct even when he has not received notice of recall.

For more information about unemployment benefits, see Summer Murshid's blog post, When Times Get Tough, The Unemployed Need Benefits.

Your case will depend on the current law, specific circumstances, and available evidence. For legal advice on your unemployment case, please contact our firm.

CAN WORKERS COMPENSATION BENEFITS BE REFUSED IF A WORKER HAS A PREEXISTING CONDITION?

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

It is impossible for any employer to expect that employees who work for them will be in perfect health. In fact, most workers have some preexisting medical condition, but they are able to do their work without any problems. In Wisconsin, an employer must take a worker "as he or she is," and that worker's pre-disposition to an injury does not relieve the employer from liability for worker's compensation coverage. Semons Dept. Store v. DILHR, 50 Wis.2d 518, 184 N.W.2d 871 (1971).

Not all work injuries involving a preexisting condition are covered under our worker's compensation law. If an accident merely causes a manifestation of the preexisting condition with no definite breakage, then the accident would not be considered work related and no benefits are payable.

If however, a worker with a preexisting condition suffers an accident and the worker's treating physician provides an opinion that the accident precipitated, aggravated, and/or accelerated a preexisting condition beyond normal progression, then any affects from the accident would be deemed work related and compensable.

Also if a worker suffers from a preexisting condition but the accident leads to a breakage in body tissue (such as a herniated disk or torn rotator cuff) that injury would be covered irrespective of whether a preexisting condition is present.

It is important that all workers obtain necessary and reasonable treatment for a work injury and that they accurately report any pre-existing medical problems that they may have had before the injury. Trying to minimize or mislead a doctor about a preexisting condition will only result in the denial of the claim and negatively impact that worker's credibility at a worker's compensation hearing. We do not have to be in perfect health as workers, but we must all be honest and accurate about any preexisting conditions and prior treatment we have received before a work injury.

NLRB POSTING WILL RAISE AWARENESS OF WORKERS RIGHTS

contact@hq-law.com (HQ-Law) — March 12, 2012

Last August, the National Labor Relations Board (NLRB) passed a rule requiring employers to post a notice explaining workers' rights under federal law to act together to improve their wages and working conditions without being subject to discipline by their employer. The posting developed by the NLRB explains, for example, that employees have a right to:

Form, join or assist a union.

Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.

Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

The deadline for posting the notice was set for January 1, 2012, but was delayed to April 30, 2012, after the National Association of Manufactures filed suit against the NLRB claiming it did not have the authority to require the posting by employers.

On March 2, 2012, the U.S. federal district court issued an opinion finding that the NLRB's rule requiring posting is a lawful and a reasonable means of promoting awareness of employee rights. The Court found invalid an additional NLRB rule that would have made an employer's failure to post the notice an automatic unfair labor practice; the Court found such violations require a case-by-case determination.

The posting of the NLRB notice at workplaces is important to spread awareness of workers' basic rights to act collectively. The posting confirms that the law provides important protections and can give employees greater confidence to act together to secure to secure improved wages, benefits or working conditions. After April 30, 2012, if the notice is not posted in your workplace, you can call the NLRB regional office (414) 297-3861 for assistance.

The poster can be found at https://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_fnl.pdf

ATTORNEYS SAKS AND SUMARA ASSIST THE NAACP AND VOCES DE LA FRONTERA IN BLOCKING VOTER ID LAW

contact@hq-law.com (HQ-Law) — March 06, 2012

Dane County Circuit Court Judge David Flanagan recently issued a temporary injunction blocking enforcement of the new photo identification law during upcoming elections. Judge Flanagan held that the Plaintiffs were very likely to prevail on the merits of their constitutional challenge of the law because "[t]he scope of the impairment has been shown to be serious, extremely broad and largely needless." The Court found that that "[i]t remains true and, for this court, dispositive that the new voter identification requirements implemented by Act 23 will likely exclude from the election process a significant portion of Wisconsin voters who are qualified under our constitution to participate in this process." A copy of the decision can be found here.

CALL CENTER EMPLOYEES ARE ENTITLED TO PAY FOR ALL HOURS WORKED

contact@hq-law.com (HQ-Law) — March 05, 2012

Call center employees (for example, telemarketers, customer service representatives, customer support desk employees and account collections employees) are entitled to be paid for every hour worked. The United States Department of Labor has identified a number of common wage and hour violations impacted call center employees.

For illustration, some call center employers only pay employees for the time they actually spends on the telephone. This payment method is not correct: employers must pay for all time the employee spends actually working. As in any other occupation, an employer must pay for all time worked. Time that must be compensated includes time spent turning on the computer, reading emails, reading instructions, doing paperwork, or any other activity that is integral to the performance of the job.

Additionally, many call center employers measure employee productivity using various metrics, including "adherence," used to determine how well an individual employee is using his or her time at work. These measurements must include appropriate and sufficient time for non-call work tasks, breaks and other compensable time. When an employer pays based upon an inaccurate measurement of time spent on the job, it will underpay its workers.

If you feel that you have performed work which was not compensated, please contact an experienced wage and hour attorney at Hawks Quindel attorney for a free consultation to discuss your options.

SCHRODER WINS APPEAL BEFORE THE LABOR AND INDUSTRY REVIEW COMMISSION

contact@hq-law.com (HQ-Law) — March 01, 2012

On February 17, 2012, the Labor and Industry Review Commission (LIRC) issued a decision finding a warehouse technician eligible for unemployment insurance benefits and reversing an administrative law judge's decision that the employee was discharged for misconduct within the meaning of Wis. Stat. Sec. 108.04(5).

The technician, a seven year employee of Ministry Home Care Services LLC, had been working late one evening when he was pulled over by a police officer for swerving. The employee had been taking prescribed pain medication, and the police officer issued him a citation for Operating a Motor Vehicle While Intoxicated. The employer was aware that the technician took medication for his pain, and the employee was unaware that the medication adversely affected his driving.

LIRC noted, "[t]he employee was otherwise a good employee with a positive work history," and while the employer "made a reasonable business decision to discharge the employee... the employee lacked any intent to harm the employer's interests." As such, LIRC found the employee eligible for unemployment benefits since he was discharged but not for misconduct connected with his work.

IVE BEEN FIRED!

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

Losing a job, whether you expect it or not, is extremely stressful. Meeting with a lawyer can help you sort out whether you have legal claims arising from the termination.

In Wisconsin, unless you are a member of a union that has a collective bargaining agreement that covers or is with your employer, or unless you have an individual contract of employment, employment is said to be "at will." That means that the employer can hire, fire, demote or promote for any reason or no reason, other than those reasons otherwise prohibited by law. Those reasons include but are not limited to discrimination because of your age, race, national origin, sex, religion, creed, color, marital status, ancestry, sexual orientation, use or nonuse of lawful products off the employer's premises during non-working hours, arrest or conviction records, membership in the National Guard, state defense force or any military reserve unit, or disability. They also include actions taken to prevent you from participating in a pension or other employer sponsored plan (like a health plan), because you've been called up to serve in the military, or because you've been summoned for jury duty. Employers are also prohibited from retaliating against you because your opposed a discriminatory practice or filed a complaint about discriminatory treatment, filed a wage claim, suffered a workplace injury, reported a health or safety violation, had your wages garnished or refused to submit to honesty testing (under certain circumstances). Employers cannot retaliate for use of or interfere with the use of family or medical leave, or because you have been subpoenaed to testify in an action in criminal or Children's court. These various non-exclusive statutory protections exist under either federal or state law, or both.

"Wrongful discharge" is a term of legal art in Wisconsin. It means that an employee has been terminated for refusing to do something that the employer directs her to do, that if she did it would violate the law, or would violate regulations promoting the public health or safety or public good. What it does not mean is that the employer fired the employee for reasons that were unfair, or a result of favoritism (unless that favoritism is based on reasons that violate discrimination law), or simply because of bad management practices.

There is no law that requires an employer to offer severance to a terminated employee. If the employer has a formal severance plan, that plan either may contractually or under federal law require that the employer offer severance according to the terms of the plan, and usually that plan requires a complete release of claims in order to get the severance payment.

Every fact situation is different, and the foregoing summary does not by any means cover all the possible scenarios that can give rise to a claim, or not. If you think you may have a claim arising from the termination of your employment, you should contact a lawyer experienced in employment law to discuss the facts of your particular situation.

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.