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Milwaukee Employment Law Blog

Former J.C. Penney worker files whistleblower claim

Wisconsin residents might be interested to learn about a new lawsuit that was filed against the national retail chain J.C. Penney, Inc., by a former employee. The plaintiff in the lawsuit claims that he was retaliated against after noticing activities that he thought were fleecing customers and subsequently making his allegations public . His claim was filed in Florida under the Private Whistleblower Act.

Between 2007 and 2009, the plaintiff was employed in the custom decorating department of a company location in St. Petersburg, Florida. During that time, the man says he noticed that customers were being overcharged. According to his claims, sales tax was being added to nontaxable items, and items that were supposed to be on sale were being sold to customers for full price.

Supreme Court rules on pregnancy discrimination case

In a decision that could have a significant impact on employees in Wisconsin and around the country, the U.S. Supreme Court ruled on March 25 that a worker who claimed that she had been the victim of discrimination by her employer on account of her pregnancy was entitled to have her case reheard. In its 6-3 decision remanding the case to the lower court for retrial, the court indicated that the plaintiff should have another opportunity to demonstrate that the actions of her employer were in violation of the Pregnancy Discrimination Act.

The case centered around the actions of the plaintiff's employer, United Parcel Service, when the plaintiff became pregnant in 2006. On the advice and recommendation of her doctor that she not lift heavy packages, the plaintiff requested a modification of her delivery job to encompass lighter duty as an accommodation to her condition. Her supervisors refused her request, stating that while UPS had provided similar accommodations to other classes of workers, including those who had a condition that was within the scope of the Americans With Disabilities Act or who had been injured on the job, pregnancy was not within the scope of the company's policy. She subsequently went on unpaid leave and later sued UPS in federal court after filing a workplace discrimination complaint with the Equal Employment Opportunity Commission.

A look at the OSHA's final whistle-blower rules under SOX

Wisconsin employees may be interested in some information about a new final whistle-blower rule passed by the federal government. This final rule has been years in the making, but continues the policies in effect for a while.

Passed in 2002, the Sarbanes-Oxley Act directed the Occupational Safety and Health Administration to create rules regarding whistle-blowers at public companies. Three years ago, OSHA created an interim rule that protects employees from retaliation by their company or affiliates if they expose securities or financial fraud by the company. If that employee gives information about these different types of fraud and there is some kind of retaliation, the employee has 180 days to file a complaint under the law.

Alan Olson named 2015 "Leader in the Law" by Law Journal

The firm congratulates Alan Olson on being named a 2015 Leader in the Law by the Wisconsin Law Journal. Olson was one of only 29 lawyers in the State recognized by the respected publication for his outstanding leadership, vision, career achievements, legal expertise, pro bono service, and community involvement.

The ADA and the rights of disabled employees

Wisconsin individuals who are disabled may wonder what rights they have under the Americans with Disabilities Act when they seek employment. This act provides protection to individuals who suffer from a substantial disability that significantly impairs their life.

An individual must be able to perform the job's essential duties. However, if the job has non-essential duties that the disabled individual cannot do, the employer must make accommodations for that. There are a number of reasonable accommodations an employer might make for a disabled employee such as permitting a flexible schedule or making the workplace more accessible. Other accommodations might include changing training materials or procedures, restructuring the job or even assigning the employee to a different job.

FMLA definition now includes same-sex couples

People in Wisconsin might be interested to learn of the recent Department of Labor announcement that same-sex married couples will now enjoy the same protections under the Family and Medical Leave Act as do heterosexual couples. With the update in guidelines, same-sex couples will now be able to take leave to care for a sick spouse, including those living in states that do not recognize the institution.

It is believed that many employers, especially those with locations in numerous states, will benefit from the change as it will streamline how the FMLA is implemented organization-wide. Previously, FMLA leave was not granted to legally married same-sex couples who were living in a state that did not recognize their union, leaving employers a patchwork approach to how leave was administered.

Who is covered under the Fair Labor Standards Act?

Wisconsin employees may be subject to the protections of the federal Fair Labor Standards Act depending on whether or not their employers are covered enterprises. A company may be considered to be a covered enterprise if it has $500,000 or more in gross revenue annually. It may also be considered a covered enterprise if it engages in activities that care for the sick or those of an old age.

Construction and dry cleaning enterprises were covered enterprises regardless of what their sales volumes were until April 1990. They are now subject to the same $500,000 annual sales test in terms of being classified as a covered enterprise. Companies that were covered enterprises prior to March 1990 that thereafter failed the $500,000 test are still subject to other provisions under the FLSA.

The benefits of whistleblowing

Employees in Wisconsin may have heard that on March 2, the Securities and Exchange Commission announced that it would be issuing the first whistle-blower payout to a former company officer. The individual received a payout that ranges from $475,000 to $575,000 for becoming a whistle-blower. This particular case also involved an exception to the standard rules that define whistle-blower laws.

The award was given because the whistle-blower reported high quality information about securities fraud that led to the SEC executing an enforcement action that included penalties worth over $1 million. Generally, partners, trustees, directors or officers who become aware of violations from another worker are not eligible for any awards bestowed by the whistle-blower program. However, the law provides an exception for the rule when the subject is reporting the violation 120 days after compliance personnel with the information have failed to address the issue appropriately.

Whistleblower protection for truck drivers and other workers

People in Wisconsin who are employed as commercial motor carrier workers are sometimes asked to drive trucks in violation of federal safety regulations. The carrier may ask that an employee drive beyond allowable hours or drive a truck that has problems that place both the driver and others on the road at risk.

Because of the need for reporting these actions, the federal government provides whistleblower protection to commercial motor carrier workers through the Surface Transportation Assistance Act. This statute provides protections to workers who cooperate with investigators, who file complaints to report violations, who provide information in an investigation or who refuse to drive in violation of state and federal safety regulations.

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.

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Alan C. Olson & Associates
2880 S. Moorland Rd.
New Berlin, WI 53151
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