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Milwaukee Employment Law Blog

USPS to pay damages to whistleblower

Wisconsin readers who follow workplace issues may be interested in a recent decision regarding retaliation against a whistleblower. A U.S. Postal Service worker will receive nearly $230,000 in damages for retaliation that he suffered after advising a co-worker to report health concerns to the Occupational Safety and Health Administration. The worker filed a whistleblower complaint with OSHA after being subjected to a hostile work environment.

According to the complaint and subsequent investigation, the worker had been refused a promotion, publicly humiliated, demoted and made to work in an unheated storage room. A federal judge heard the case over the course of a five-day bench trial. The judge found that the worker had been retaliated against and that he was entitled to protection under a federal act that prohibits retaliation against employees by their managers. In addition to damages, the worker must be promoted to an equivalent pay rate to what he would have earned had he received the promotion that he had been denied.

The benefits of long-term disability insurance

As some Wisconsin workers may know, long-term disability insurance is useful as a way to support themselves and their family if they are unable to work. Due to economic changes and the introduction of new health care laws, many employers no longer pay for coverage. In addition, LTD insurance benefits are limited to 60 percent of one's monthly salary, and an employee-paid supplement may help. Generally, such riders are inexpensive, and it may be possible to obtain one through one's employer.

In 2013, more employers offered LTD insurance, yet fewer employees had coverage, according to the Council for Disability Awareness. Rather than paying for the employees' LTD insurance, employers are calling it a voluntary benefit, which means it is paid for by the worker. This allows the worker to choose if he or she will take the benefit. Employees enrolled in such voluntary self-paid plans number about 40 percent of eligible workers.

Legal assistance with long-term disability claims

Being faced with the inability to work can be stressful for a Wisconsin employee. As your health is affected because of a disabling condition, it is important to address the challenges that could result. Being unable to continue to work can be an extreme financial issue, but disability insurance is meant to counter this by providing an income. Unfortunately, you may find that an insurer is unwilling to honor its policy.

One of the most common issues resulting in the denial of disability benefits is a lack of objective evidence. While physical conditions that can be demonstrated with X-rays or MRIs may be difficult to dispute, pain and fatigue claims are often denied due to a lack of objective proof. Unfortunately, these chronic conditions can still make it difficult or impossible to continue working, meaning that a denial can place you in a distressing financial situation.

Assessing employment contracts in Wisconsin

Employees in Wisconsin might benefit from learning more about which factors to consider before finalizing an employment contract. Applicants are advised to learn more about employment law, reread the terms carefully and enlist the services of a lawyer to review the appropriate documentation. Employees may need to consider what transpires if the company or employer is sold. Many times, the terms of the employment contract may be voidable if they are challenged.

Workers may also benefit from understanding more about what restrictions may exist or be imposed after the employment is terminated. Employees may be prohibited or restricted from conducting business with parties they worked with under the employer. In order to be enforceable, the terms of an employment contract designed to prevent companies from poaching employees must be reasonable and last one to two years at most. Employees are advised to review the terms carefully to discern whether or not a non-compete clause can significantly impede future employment opportunities.

Motion approved in whistleblower settlement

Employees in Wisconsin may benefit from understanding more about the settlement reached between Southwest Airlines and a whistleblower mechanic. The employee claims he was disciplined for reporting cracks he discovered in a Boeing 737-700's fuselage, and filed a lawsuit for whistleblower protections established by the AIR-21 statute. On Jan. 8, a settlement was approved by a Department of Labor Administrative Judge who granted the summary judgment motion filed by the mechanic, and dismissed the airline's motion.

The employee was represented by the same lawyer representing mechanics claiming that they were pressured by America Airlines to violate safety standards. The inciting incident concerning the Southwest Airline lawsuit occurred during July 2014. According to the judge, while the mechanic performed a standard walk-around inspection, he documented two cracks in the fuselage that ultimately resulted in the Boeing 737 being removed from service for repairs. Afterwards, the employee was called into a meeting with management, where he was reprimanded for purportedly acting beyond the scope of his assigned duties.

Family and Medical Leave Act and workplace discrimination

The Family and Medical Leave Act is the first and only federal law that addresses the balance between jobs and family that workers in Wisconsin and across the U.S. must maintain. The 12 weeks of unpaid leave guaranteed by the act has been used more than 200 million times since being passed. Reasons for taking leave vary, including recovering from a serious illness, caring for a loved one who is ill or receiving maternity or paternity leave.

Approximately 40 percent of workers are ineligible for FMLA due reasons such as to short work hours or tenure. Even some eligible workers did not use their unpaid leave, as they couldn't afford to be without pay. FMLA provides job protection, but it's important to ensure that the person returning from leave will not suffer workplace discrimination. A worker who needs medical leave or has family responsibilities should not face discrimination in the workplace, and women should not face pregnancy discrimination.

Retaliation against whistleblowers illegal

As some Wisconsin workers have found, employees who see and report unsafe conditions or activities might find that negative actions have been taken against them by an employer. If this happens, the employee may have the ability to file a complaint with the Occupational Safety and Health Administration.

OSHA investigates reports by looking into the protected activity and determining if the employee's actions were justified. In addition, OSHA reviews an employer's response to a whistleblower. There are many different areas where an employee may feel that dangerous or unlawful conditions exist ranging from the transportation industry, environmental concerns and corporate fraud among others. The employer is prohibited from taking such actions as firing the employee or failing to promote them. The employer may not refuse the employee benefits or overtime. In addition, the employer may not demote, reduce pay, blacklist or intimidate the employee. Such actions are unlawful, and the employee may report the retaliation to OSHA or state agencies in a timely manner.

Truck driver wins alcohol disability suit against employer

Wisconsin truck drivers might be interested in a case in which Old Dominion Freight Line was found guilty of violating the American with Disabilities Act and ordered to pay one of its former drivers more than $100,000 in back pay. The Equal Employment Opportunity Commission sued the company on behalf of the employee after the driver was dismissed when he sought help for an alcohol problem in 2009. Under the Americans with Disability Act, alcoholism is considered a disability. Employers are required to make reasonable accommodations for disabled employees.

According to the suit, the man was an employee in good standing with the company for five years in Arkansas. In the summer of 2009, he sought assistance from his company for alcohol abuse, began attending Alcoholics Anonymous and met with a substance abuse professional certified by the Department of Transportation who said he could return to work.

Whistleblowing and the False Claims Act

Wisconsin workers may be familiar with the term "whistleblower," which refers to a person who blows the whistle on an employer who is engaged in illegal activity. One type of whistleblower action that an employee may bring against an employer is a qui tam action. Qui tam actions are lawsuits alleging that the government has suffered harm at the hands of an individual or a corporation that filed false claims. The False Claims Act, a federal law, incentivizes individuals to alert the government of such illegal conduct by offering individuals a percentage of any award that results from the lawsuit being successfully prosecuted.

The award in a qui tam case is determined by the amount of penalties that a guilty defendant is ordered to pay. Once a court establishes that the government suffered monetary damages as a result of a defendant's conduct, the defendant will be ordered to pay three times that amount back to the government. The court in its discretion may also order the defendant to pay a penalty for each false claim, in the amount of anywhere from $5,000 to $10,000.

Chronic pain and fatigue in the workplace

Chronic pain is becoming an increasingly common diagnosis for employees across the nation, and Wisconsin residents dealing with such issues can be affected in their ability to work. In some cases, chronic pain may even be connected to work-related activities. If you are attempting to continue in your job while enduring such pain, you may find that your performance is affected significantly. In some situations, disability accommodations or benefits may be needed.

Some of the most common types of chronic pain include neuropathic pain, back pain, joint pain and headaches. The amount of time such pain is present may be a determining factor in whether the pain is considered to be chronic. Headaches, for example, may be identified as chronic if there is a pattern of recurrence for at least 15 days per month over a three-month period. Neuropathic pain may result from an injury such as a slipped disk or from a disease such as diabetes. Information about your condition may provide the starting point for identifying your options in moving forward.

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