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Milwaukee Employment Law Blog

Employer socked with big fees despite small employee damages

In Cuff v. Trans State Holdings, Inc., a Family and Medical Leave Act ("FMLA") case, the Seventh Circuit recently awarded the employee, Cuff, $331,000 in attorneys' fees, costs and interest even though Cuff's damages were only $43,000. The Court's justification for such remedies was that, "the defense had not done its homework; it was content to leave the labor to Cuff's team and the judge ... for issue after issue."  The main issue in this case was that workers are covered by the FMLA when they are jointly employed by multiple firms that collectively have 50 or more workers, and that firms may be treated as a single employer when they operate a joint business. There were several indicators that Cuff worked for both operations.  Cuff was the "regional manager" of the three firms and his business card bore the logos of all three firms. Moreover, Cuff had been hired to provide services to both air carriers.

What is considered reasonable accommodation under the ADA?

Both Wisconsin employees as well as those persons seeking a job in the state may be interested in the requirements placed on employers in order to be in compliance with the Americans with Disabilities Act. The law uses the term 'reasonable accommodation" when describing what an employer must do in order to facilitate someone with needs either applying for or performing a job.

The law's requirements do not start with the employer. The employee must make sure that he or she lets the employer know about the limitation. In fact, often the employee can suggest the accommodation that will be most helpful to him or her being able to fulfill the requirements of a position. Since every condition is singular, each accommodation should be worked out on an individual basis.

Understanding the Wisconsin Family and Medical Leave Act

A Wisconsin employee may face issues at times that demand personal attention. In the past, personal time might be taken to address these issues, but those who did not have such time built into their terms of employment could face negative work-related consequences for missing work to deal with family issues. However, the Wisconsin Family and Medical Leave Act facilitates these needs in certain work environments without employees having to worry about being penalized.

The Wisconsin legislation in general covers employers with at least 50 permanent employees. Under the Act, employees may take up to six weeks off during a calendar year in connection with adoption or the birth of a child. This provision is available to both men and women. An employee may also take two weeks of leave during the year to take care of a domestic partner, parent, child or spouse. Similarly, up to two weeks of leave is allowable for personal needs to address a serious health issue. These employment rights may not be denied or limited under the state law. Additionally, an employer may not discriminate against an employee who files a complaint or assists with an investigation related to the law.

Long-term disability benefits for Wisconsin workers

Wisconsin residents who are no longer able to work may be interested in learning more about long-term disability benefits. The law provides for two types of disability benefits, both of which are administered through the Social Security Administration. Social Security Disability Insurance is a benefit available to workers that contributed to Social Security and who become unable to work for an extended period of time. The other benefit is Supplemental Security Income, which is a need-based program. Injured workers must meet eligibility requirements to receive SSI.

In addition to disabled workers, surviving disabled spouses may be eligible for benefits if the deceased spouse worked and paid into the system long enough to be eligible. Individuals who became disabled and unable to work before their 22nd birthdays may also be entitled to long-term disability benefits if they have a deceased or disabled parent or a retired parent who worked long enough to be eligible. Any person who receives SSI is also eligible for health care through Medicaid.

Defining workplace harassment in Wisconsin

Under Wisconsin's Fair Employment Law, harassment can take two distinct forms in the workplace. The first type of harassment involves an employer singling out an employee based on factors such as their age, sex or sexual orientation. Another type of harassment occurs when an employer harasses based on these items. For example, making a crude sexual joke or making fun of a certain religion may fall under the second form of harassment.

How might harassment in the workplace manifest itself? In some cases, harassment may take the form of a quid pro quo. In other words, the promise of continued employment is based on an employee performing sexual or other favors for a manager or supervisor. Non-verbal harassment such as staring or unwanted gestures may be made by a colleague. Verbal or physical harassment such as making jokes about an individual's sex life or unwanted touching could may also occur.

How FMLA guidelines impact Wisconsin employees

The Family and Medical Leave Act enables workers who are dealing with health issues to leave work as necessary. This act may also apply to workers who need to leave work to deal with health issues of family members. Both the federal government and the state of Wisconsin have their own versions of the FMLA. While many provisions are the same in both cases, the state version differs from the federal version in some respects.

The federal legislation covers those who work for employers with more than 50 employees for at least 20 weeks in a year. Wisconsin provides coverage for those who work for companies with 50 permanent employees in six of the past 12 calendar months. Federal law allows for 12 weeks of leave per year while the state law allows for six weeks of leave after giving birth.

Whistleblower to receive $2.3 million in settlement

Wisconsin residents might be interested to learn about a settlement that was reached in a false country of origin lawsuit involving medical device manufacturer Smith & Nephew. On Sept. 3, the London-based company agreed to settle a lawsuit with the U.S. government by paying $11.3 million in damages. In 2008, the company was accused of selling Malaysian-made orthopedic devices to the Department of Veterans Affairs and falsely claiming they were made in the United States.

In accordance with U.S. law, the whistleblower who filed the lawsuit will receive a portion of the settlement. The former Smith & Nephew information technology manager will be paid $2.3 million. The U.S. government will get $6 million from the settlement, and the remaining $3 million will cover attorneys' fees.

Federal disability discrimination law applies in Wisconsin

Federal law prohibits employment discrimination based on a disability of an employee or job applicant. Disability discrimination is governed by the Americans with Disabilities Act. According to the protections offered by the act, employers may not treat a person less favorably because of a belief that he or she has a disability or a history of disability. Discrimination is prohibited with regard to pay rates, job assignments, hiring and firing decisions, promotions, layoffs, fringe benefits and other employment related matters.

An employer's discriminatory action may violate the ADA even if the person affected does not actually have a disability because the discrimination may occur due an employer's incorrect belief that a disability exists. History of disability may be sufficient to support a claim of discrimination as well. An employee or applicant who has cancer that is in remission, for example, may have a claim for disability discrimination if he or she suffers adverse employment action due to medical history.

Whistle-blower receives award from SEC

Wisconsin employees may want to know more about an Aug. 29 announcement by the Securities and Exchange Commission that it has made its first whistle-blower award to an employee involved in audit and compliance activities. The award, which was reported to be in excess of $300,000, was for information the employee provided to the SEC on wrongdoings at the employee's company. According to the announcement, the employee provided the information to the SEC after the company failed to act on the employee's discoveries.

According to the SEC, the employee correctly handled the matter of reporting the findings to the employee's company, even reporting them to a supervisor. However, after the company took no action over the next 120 days, the employee contacted the SEC. The information provided by the employee led to SEC enforcement action.

Whistleblower reports overpriced parts in federal contract

A former assistant controller of a subsidiary of an aircraft company has filed a lawsuit in Milwaukee against her employer after she was terminated. According to the former employee, she was fired as a result of her whistleblower action. According to the woman, her former employer inflated the price for parts sold to the United States government as part of a federal contract.

The plaintiff in the case was originally hired in 2002 as a financial analyst until she became the company's assistant controller for financial reporting and compliance in 2003. The former assistant controller said that the company marked the parts up by 20 percent, despite a provision in a Navy contract saying that the company was required to provide the parts at cost. When the company sent the parts to the government, the invoices did not mention the markup. The plaintiff was responsible for preparing documents regarding the parts between July 2006 and September 2010. She reported the issue to the company, but eventually she reported it to the U.S. government accounting manager when no action was taken.

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