“We’re incredibly excited to add Paul,” said James A. Walcheske, a Founding Partner of the firm. “It’s not everyday that you have the opportunity to bring in a nationally-known expert in the field who literally has written the books on labor and employment, education, and ERISA law.”

Attorney Secunda has published extensively on employee benefits, employment, labor, and education law issues, and his work has been cited numerous times by judges around the country. He is also the co-author of a number of current labor and employment law treatises, including: “Understanding Employment Law 3rd Ed.,” “Labor Law: A Problem-Based Approach,” and “Mastering Employment Discrimination Law 2nd Ed.”

Previously, former U.S. Secretary of Labor Hilda Solis appointed Attorney Secunda to a three-year term on the Department of Labor’s ERISA Advisory Council. Former U.S. Secretary of Labor Thomas Perez also appointed him to serve as the Chairman of the Council in 2015. Attorney Secunda is also an elected fellow of the American College of Employee Benefits Counsel, American Law Institute, and the American Bar Foundation, and is the past national Chair of the Association of American Law Schools Employee Benefits and Executive Compensation Section.

About Walcheske & Luzi, LLC
Walcheske & Luzi, LLC is dedicated to handling all aspects of the employment relationship, counseling, advising, and litigating wage and hour issues, workplace discrimination and harassment issues, FMLA issues, and employment benefit issues, among others. Walcheske & Luzi was named to the 2020 “Best Law Firms” by U.S. News World Report and Best Lawyers. Founding Partners Walcheske and Luzi have been honored eight (8) straight years as “Rising Stars” in employment law by Thomson Reuters, and Attorney Walcheske was recognized in the 26th Edition of The Best Lawyers in American in the field of Litigation – Labor and Employment.

With offices in Brookfield and Appleton, the firm serves the entire State of Wisconsin.

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Similarly, all businesses are unique, with different challenges that come into play when determining the best course of action. However, in an effort to hopefully eliminate some uncertainty, we put together some frequently asked questions and answers. Obviously, these do not address all questions that may come up, so we invite you to contact us directly regarding any other questions and scenarios you may have.  

• I’m thinking about having my employees work from home. What should I have in place? 

You want to make sure these basic questions are addressed: (1) how will the employee access the information necessary to do the job; (2) how will the employee communicate with coworkers, management, customers, etc.; and (3) how will the employee track his or her hours, if necessary? 

Remote access to business email accounts, servers, shared drives, etc. is necessary for employees to access the information necessary to perform their jobs. Make sure you have adequate systems in place. Same goes for communication. 

With respect to compensation, employees must be compensated for all hours of work they are suffered or permitted to perform. Supervision of that work certainly becomes more difficult when employees are working remotely. For this reason, you must have policies in place that are clearly communicated to all employees stating that they are responsible for accurately recording and reporting all hours worked while working remotely. If you do not already have one in place, no particular system has to be utilized to accomplish this. It is more important to emphasize the importance of accurate recording and reporting of hours and the repercussions for failing to do so (i.e., won’t be compensated for work that is not recorded and reported, employee discipline for discrepancies, etc.). 

• What do I do if my employee can’t come to work and I don’t have a formal leave policy? 

If your workplace does not already have a formal leave policy, then this is going to be discretionary. If you have a policy, it is expected that you will follow it. If you have fifty (50) or more employees, the FMLA could be implicated, which is addressed next (and at which point we would expect a written policy to be in place already). 

As a baseline, employers are not required to provide leave to their employees. However, it is recommended that they do. That said, providing leave is not equivalent to providing paid leave. This, again, is discretionary, particularly when you do not have a formal policy already in place. It is up the business whether leave will be paid or unpaid. It is also up to the business to discern how long leave will be provided. 

If your business does not have a policy in place already, now is the time to determine what it will do and to communicate it to employees in advance to set the expectation. 

• Is being infected with the coronavirus a “serious medical condition” under the Family and Medical Leave Act (FMLA)?

As a refresher, regulations define a “serious medical condition” is an illness, injury, impairment or physical or mental condition that: (a) involves inpatient medical care (overnight stay in a hospital or other medical facility); or (b) continuing treatment by a health care provider after a period of being unable to work. 

Looking at this definition, yes, leave from work due to a coronavirus infection and recovery thereafter certainly could be FMLA-qualifying, particularly in more serious cases. 

• How long do I have to hold an employee’s position open if they’re out with the virus? 

If the employee is FMLA-eligible and requires FMLA-qualifying leave, then that employee’s position is protected while he or she is on FMLA leave. 

Smaller employers (those not covered by the FMLA) are not required to hold an employee’s position open while he or she is out of work due to illness. Accordingly, they have the discretion to decide what is best given the particular circumstances of the workplace. Can the employee work from home? Can the business survive without the employee for a period of weeks, if necessary? Can the employee’s duties be divided amongst other employees? Can a temp be used to cover for the employee? These are all factors that should be considered, and communication is incredibly important with all employees who are directly or indirectly impacted by the absence.

• Is being infected with the coronavirus considered a “disability”? 

In Wisconsin, there are two (2) definitions of “disability” at play – the Wisconsin Fair Employment Act’s (WFEA) definition and the Americans with Disabilities Act’s (ADA) definition. 

Under either definition, an illness resulting from the coronavirus would not constitute a “disability.” However, should the illness result in any further medical conditions, those conditions may qualify depending on the circumstances. Communication between the employee and the employer regarding the employee’s health and return-to-work status are critical for all involved.  

Above all, it is important for all of us to exercise good judgment, take all reasonably necessary precautions, and take workplace safety and the health of our employees seriously. If you have questions, reach out. 

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First and foremost, Walcheske & Luzi, LLC was named to the 2020 “Best Law Firms” by U.S. News World Report and Best Lawyers. This prestigious placement comes as the result of the dedicated, client-oriented approach instilled upon the attorneys at Walcheske & Luzi, LLC by Founding Partners James A. Walcheske and Scott S. Luzi. Attorney Walcheske was also recognized individually in the 26th Edition of The Best Lawyers in America in the field of Litigation – Labor and Employment as one of the elite attorneys in the United States.

Besides just the 2020 “Best Law Firms” award, earlier this month Attorneys Walcheske and Luzi were recognized as Rising Stars in Employment Law by Thomson Reuters. This marks the eighth straight year Attorneys Walcheske and Luzi received this honor.

To be named Rising Stars, Thomson Reuters put our attorneys’ accomplishments through a multi-step process. First, they had to be nominated for the award or recognized by Thomson Reuters as candidates. Second, they were evaluated by Thomson Reuters based on twelve indicators of peer recognition and professional achievement. Third, they were subjected to peer evaluation from other attorneys in the area of Employment Law. Finally, they went through a final selection process.

Only 2.5% of attorneys in the State of Wisconsin, including the attorneys at Walcheske & Luzi, make it through this process and are ultimately named Rising Stars.

“As a firm, we are incredibly devoted to our clients and strive for excellence in all that we do. I am extremely proud of what we continue to accomplish, and we all are humbled to be recognized for our efforts.” – Founding Partner James A. Walcheske.

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In Fort Bend County, Texas v. Davis, the plaintiff, Davis, initially filed an EEOC complaint alleging sexual harassment and retaliation for reporting sexual harassment. While her EEOC complaint was still pending, she was fired when she was absent from work due to a church-related scheduling conflict. Wanting to then also bring a claim for religious discrimination, Davis attempted to add the claim by handwriting it into her Intake Questionnaire, but she never formally amended her complaint to include a claim for religious discrimination. Thereafter, the EEOC issued Davis a Notice of Right to Sue and she filed claims of sexual harassment, retaliation, and religious discrimination in federal court.

Years into the litigation, Fort Bend challenged Davis’ religious discrimination claim on jurisdictional grounds, arguing that the court did not have jurisdiction to hear or adjudicate the claim because Davis did not satisfy her administrative requirement to file that claim with the EEOC before bringing it in federal court.

The district court agreed that it did not have jurisdiction over Davis’ religious discrimination claim. However, the Firth Circuit reversed on the grounds that the administrative requirement of filing a complaint with the EEOC is a procedural requirement, not jurisdictional. The Supreme Court agreed and rejected Fort Bend’s untimely effort to dismiss Davis’ religious discrimination claim, holding that the claim-filing requirement is procedural, not jurisdictional, and because it is procedural, it must be “timely raised” or forfeited (aka, waived).

Takeaway: Many employment-related statutes, including Title VII and the Americans With Disabilities Act, require that an individual first bring their claims before the EEOC and received a Notice of Right to Sue on those claims before they can be brought in federal court. If claims are not brought before or otherwise investigated by the EEOC, they cannot be filed in federal court.

Here, Fort Bend was right that Davis’ religious discrimination should be dismissed. However, it needed to act right away. This is where what is referred to as a 12(b)(6) Motion to Dismiss comes into play – that is a motion that is filed immediately upon receipt of the individual’s federal court complaint that challenges the legal sufficiency of the claims raised. If Fort Bend had acted in a timely manner, most obviously by filing a motion to dismiss Davis’ religious discrimination claim right off the bat, it would have been dismissed and this never would have happened.

This highlights the importance of procedural requirements for plaintiffs and the need for immediate action by employers when those procedural requirements are not satisfied. Lesson learned.

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We all know that Wisconsin is an “at-will” state – meaning an employer can terminate an employee for any reason or no reason whatsoever, so long as the termination isn’t unlawful – but this scenario, commonly referred to as an “Unreasonable Refusal to Rehire” claim, is an exception to the at-will doctrine. Under Wisconsin law, if an employer fires an employee or refuses to hire one after he suffers a compensable injury (aka, an injury subject to coverage under worker’s compensation), the employee could be entitled to up to one year’s wages.

In order to establish an Unreasonable Refusal to Rehire claim, an employee must prove the following: (1) that he is an employee of the employer; (2) that he suffered a compensable (aka, work-related and covered) injury; (3) that the employer denied rehire to or terminated him; and (4) that the denial or termination was because of his compensable injury. Once these facts are established, the employer can rebut or disprove the claim by showing that the action it took (denial or termination) was reasonable and unrelated to the injury.

The purpose of the law is obvious: to prevent employers from/punish them for discriminating against employees who suffer work-related injuries. In this regard, employers must be diligent in ensuring that if an employee suffers a work-related injury, that employee is not terminated due to or because of that injury.

Does this mean that an employee who suffers a workplace injury cannot be fired in any circumstance? No. However, it does mean that if you are thinking about firing that employee, you better have a good (and well-documented) reason to do it that is unrelated to his injury. The timing alone will raise red flags in the employee’s mind and those of others, which has a tendency to lead to quality time with your attorney.

**NOTE: These claims are not covered by insurance! Because Wisconsin employers are required to carry worker’s compensation insurance, it often comes as a surprise that Unreasonable Refusal to Rehire claims are not covered, meaning that employers face direct, out-of-pocket liability. Be sure to immediately contact a knowledgeable, Wisconsin attorney (wink) if you get notice of such a claim.

If you are or may be facing an Unreasonable Refusal to Rehire claim, immediately contact our attorneys in our Brookfield, Appleton, or Kenosha offices. At Walcheske & Luzi, LLC, YourWork is Our Work – whether you live in Milwaukee, Sussex, Oshkosh, Green Bay, Racine, or anywhere in between, our experienced attorneys will work with you to create practical, cost-effective solutions to your workplace issues.

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Wisconsin is an “at-will” state, meaning that an employer can terminate an employee for good cause, no cause, or even for reasons that are subjectively unfair or “wrong,” so long as the termination is not unlawful.  Importantly, employers do not have to provide employees with the reason(s) for their terminations.  On the flipside of the “at-will” doctrine, employees are free to quit whenever and for whatever reason (if any) they want.

Briefly looking beyond wrongful termination, a termination can be unlawful if the reason(s) underlying the termination decision violates existing laws, such asTitle VII of the Civil Rights Act of 1964, the Wisconsin Fair Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act, just to name a few (we have more here, which still barely scratch the surface).

Unlike those laws, “wrongful termination” as a legal claim lacks a statutory definition, but rather is a construct of Wisconsin courts, having been specifically recognized as a cause of action by the Wisconsin Supreme Court in 1983.  Because it does not have a written definition, the boundaries of “wrongful termination” have expanded and contracted over the years.  However, what has remained true since 1983 is that “wrongful termination” occurs when an employee is terminated for refusing to violate a constitutional or statutory provision or for reporting unlawful conduct in the workplace.

Examples come from wrongful termination cases including a nurse who refused to work in an area of a hospital for which she was not qualified, a credit union clerk who refused to reimburse her employer for its losses resulting from a customer’s bad check, a truck driver who refused his employer’s command to operate his truck without a valid driver’s license, and a payroll clerk who refused to violate tax withholding regulations.

While not necessarily, wrongful termination claims can sometimes overlap with other exceptions to the at-will doctrine.  Looking at the above examples, other laws that could be implicated include, but would not be limited to, the Healthcare Worker Protection Law, the Fair Labor Standards Act, the Occupational Safety and Health Act of 1970, and the Sarbanes-Oxley Act of 2002.

The takeaway is that not every termination is “wrongful” or unlawful, though there are obvious exceptions.  Employers are wise to consult with an employment law attorney before making a termination decision to make sure the termination does not fall into an exception.  On the other hand, employees should consult with an employment law attorney if they think their termination was the exception.

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The definition of a boomerang employee is simple: it is when an employee quits a job (for better pay, to go back to school, to have a family) and then is re-hired by that employer at a later date.

Boomerang employees can provide excellent benefits to employers. These are people who already know the culture of the employer and probably the basic operating structure of the business.  Early research shows boomerang employees are often happier than non-boomerang employees because they learned the “grass isn’t greener” at a different employer.

Employees should take care not to burn any bridges when leaving a job in the event they may want to return someday. On the flip side, employers should “leave the door open” to possible boomerang employees by conducting exit interviews to provide information about future accommodations such as telecommuting. Employers are assisted by technology in re-hiring employees because programs like LinkdedIn allow for easy communication after an employee has left.

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Representing clients in all aspects of the employment relationship, our attorneys have been recognized and commended by clients and colleagues alike for their past accomplishments, straightforward advice, practical approach, and zealous advocacy.

Walcheske & Luzi, LLC vigorously litigates discrimination, harassment, wage & hour, retaliation, disability, and FMLA cases (among many others) and also provides consultative advice to ensure that proper and effective policies and preventative measures are in place – not only to avoid liability, future litigation, and to ensure compliance with federal and state laws, but also to guarantee that all employees are treated fairly at work. Our legal skills, experience, thoughtfulness, and personalities allow us to provide the best possible advice and representation for our clients.

At Walcheske & Luzi, Your Work is Our Work. Let’s work together to create practical, cost-effective solutions to your workplace issues.

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Currently (more on this in a bit), in order for a non-compete agreement to be enforceable in Wisconsin, it must:

In order for a non-compete to be valid/enforceable it has to meet all five requirements. Simply hitting on 4/5 will not suffice.

Further, “consideration” (some sort of benefit) must be provided to the employee in exchange for signing the agreement. “Consideration” does not necessarily mean “money.” While it can take the form of a bonus or stock options or something similarly, notably, the Wisconsin Supreme Court held that gainful employment can also be sufficient consideration for a non-compete agreement.This means employers can condition an individual’s hiring or an employee’s continued employment on him/her signing the non-compete. Of course, and as we consistently find ourselves explaining to people, this means that you as the employer have to be prepared to not hire an individual or to fire a current employee if he/she does not sign.

So, assuming that there’s consideration and that the non-compete agreement is necessary for the employer’s protection, contains reasonable time and geographic restrictions, is not overly oppressive to the employee, and does not contradict public policy, the agreement will be enforceable in the State of Wisconsin. If not, then it will not be enforceable.

It is also important to note that what is “enforceable” can be fluid, in that it will likely change over time. For example, just last year the Wisconsin Supreme Court held that non-solicitation agreements are subject to the same five requirements for enforceability. Prior to that, it was an open question. For this reason, and as much as employers love attorneys, we do recommend that they find an attorney to partner with to have their non-compete agreements reviewed each year and also to be kept abreast of any developments in the law. So happens we know some.

For further questions and guidance on non-compete agreements in your workplace, do not hesitate to contact any of the fine attorneys at Walcheske & Luzi.

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Representing clients in all aspects of the employment relationship, our attorneys have been recognized and commended by clients and colleagues alike for their past accomplishments, straightforward advice, practical approach, and zealous advocacy.

Walcheske & Luzi, LLC vigorously litigates discrimination, harassment, wage & hour, retaliation, disability, and FMLA cases (among many others) and also provides consultative advice to ensure that proper and effective policies and preventative measures are in place – not only to avoid liability, future litigation, and to ensure compliance with federal and state laws, but also to guarantee that all employees are treated fairly at work. Our legal skills, experience, thoughtfulness, and personalities allow us to provide the best possible advice and representation for our clients.

At Walcheske & Luzi, Your Work is Our Work. Let’s work together to create practical, cost-effective solutions to your workplace issues.

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