Milwaukee Employment Law Blog

We are continuing our discussion of proposed rules from the U.S. Department of Labor. The proposals would amend the federal Family and Medical Leave Act in accordance with the National Defense Authorization Act for 2010 and other laws. It is important to remember that these proposed rules will not affect the Wisconsin FMLA.

In our last post, we discussed a change to the way employers track FMLA leave and the DOL's clarification of mid-shift reinstatement. The last category of proposals addresses the role of the FMLA in the military.

The U.S. Department of Labor has proposed a few changes to the Family and Medical Leave Act that, if approved, will have an impact on workers in Wisconsin. These proposed rules will only change the federal law; the Wisconsin FMLA will not be affected. The public comment period on the new language closes at the end of March.

The changes fall into three broad categories: FMLA administration, worker reinstatement and military leave. All will affect both employee and employer.

In our last post, we discussed the record number of claims that the Equal Employment Opportunity Commission handled last year. According to the recently released draft strategic plan, budget cuts will not undermine the commission's investigation and enforcement of workplace discrimination claims any time soon.

Over the past couple of years, the EEOC has focused on systemic discrimination. The draft plan indicates that this will not change. Systemic discrimination occurs when an employer engages, consciously or unwittingly, in a discriminatory pattern of hiring or applicant screening.

The Equal Employment Opportunity Commission reports that the agency received a record number of discrimination charges in 2011. Once again, charges of retaliation were the most common, with race discrimination charges a close second.

While we note that Wisconsin data for 2010 mirrors this trend, the report includes only nationwide data. The EEOC enforces federal laws. State agencies enforce complaints made under state statutes, like the Wisconsin Fair Employment Act.

Did you know that 20 percent of employees report that they have been the victim of retaliation for reporting improper behavior on the job? As many Wisconsin residents know, it is against the law for an employer to fire an employee in retaliation against a worker's expressed complaint or concern. A recent article discusses the latest reports about discrimination in the workplace.

According to the article, retaliation is on the rise. A whopping 8.8 million people experienced retaliation from 2009-2011. Furthermore, the instances of revenge range from exclusion at the workplace to harassment or physical harm. However, even if these statistics scare you, you should know that keeping your mouth shut is not always a good idea.

Alan Olson writes this web-log to provide helpful information regarding employment law cases. He practices employment law throughout the United States from his offices in New Berlin, Wisconsin. Attorney Olson may be contacted at AOlson@Employee-Advocates.com with questions about the information posted here or for advice on specific retaliation claims.

We are continuing our discussion of a recent employment law case. A federal court decided the case in favor of the employee, agreeing that severe obesity qualifies as a disability under the Americans with Disabilities Act. The Equal Employment Opportunity Commission took up the case after the claimant's death.

The employee was obese when the company hired her, and she gained weight during her tenure. Nevertheless, she received stellar performance evaluations. It came as a surpise when, about a year later, the employer fired her. The company said her "limited mobility" had become an issue, and it expressed some concern that, if the occasion arose, she would not be able to perform CPR on the children in her care.

Employers often have rules that extend beyond the walls of the office or factory and intrude on the outside lives of their employees. Some of the most common policies are those regulating illegal drug use both at work and outside of work. Some of the most controversial policies are those regulating the ingestion of unhealthy, but otherwise legal substances, including alcohol and tobacco off work premises. Other "outside of work rules" that some employers seek to impose are social networking regulations and residency requirements for municipal workers.

Many employees view employer rules that seek to limit them outside of work a violation of their basic liberties, take offense to such rules, and simply refuse to comply with such restrictions. When an employer fires a worker because of a violation of arguably overreaching policies or determines that the worker voluntarily terminated employment by refusing to comply with these rules, an employee should pursue their unemployment insurance benefits as they otherwise would.

The employer has the burden to establish that its work rule governing off-duty conduct is reasonable. Gregory v. Anderson, 14 Wis. 2d 130 (1961). "The reasonableness of such a rule must be tested as of the time of its adoption. It is a reasonable rule if violation is reasonably likely to harm the employer's business interests." Gregory at 138.

Residency requirement for municipal employees are constitutional and legally permissible. Eastman v. City of Madison, 117 Wis. 2d 106 (App. 1983). Some residency requirements may even be legitimately adopted as city ordinances. However, if a residency policy is not embodied in a collective bargaining agreement or a city ordinance, and the employer fails to present evidence regarding why it was reasonable to restrict where the employee could live and why violation of its policy was likely to harm its interests, unemployment benefits are awarded to the employee. Other rules are subject to the same analysis. Is restricting an employee from drinking beer on the weekends likely to protect the employer's business interests? Probably not.

Attorney Nicholas M. McLeod is an associate attorney at Alan C. Olson & Associates, S.C. If you have questions about unemployment insurance, please contact him at: nmcleod@employee-advocates.com

Technology is not always our friend, especially when it comes to physical activity. Parents everywhere say their kids spend more time texting or playing computer games than they do getting fresh air and exercise. Parents aren't immune, either. According to the U.S. Centers for Disease Control and Prevention, the obesity rate for adults has more than doubled over the past 20 years. In Wisconsin, more than 26 percent of adults are obese.

A federal court recently confirmed that severe obesity qualifies as a disability under the Americans with Disabilities Act. A person who is severely obese weighs more than twice as much as the norm.