Milwaukee Employment Law Blog

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.

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.

We are finishing up our discussion of an 8th Circuit case that highlights the complexities of insurance companies' benefits decisions. Each decision is based on the opinions of a number of professionals, including the treating physician(s). The plan in this case defined two long-term disability benefit periods: In the first 24 months, the claimant cannot perform his own job; after that, he cannot perform any job.

The insurance company denied benefits after the first 24 months. The claimant's treating physician had said he was unable to work at any job, but the insurance company's reviewing physician thought otherwise. The reviewing doctor's opinion, however, was based in part on a misreading of the record. The claimant appealed.

We are picking up our discussion of a case out of the 8th U.S. Court of Appeals regarding an employee's long-term disability benefits claim.

The claimant had a number of physical ailments. His plan had two benefit periods. During the first 24 months, the claimant had to be unable to perform the duties of his "own occupation"; after that, benefits would only continue if he were unable to perform the duties of "any occupation." When the transition point came around, his treating physician completed the insurance company questionnaire.

Most Wisconsin jetsetters would find it hard to believe that a pilot could be fired for ensuring the safety of passengers aboard flights. Nevertheless, a recent story discusses the firing of an employee who was concerned about flight-related mechanical equipment.

The Occupational Safety and Health Administration (OSHA) recently ordered AirTran Airways, a Southwest Airlines subsidiary, to reinstate a pilot who was fired after he reported a series of safety concerns. The agency conducted an investigation and found that the airline violated whistle-blower protection laws when it terminated the employee in 2007. OSHA noted that firing the pilot in retaliation for reporting mechanical malfunctions was not acceptable. Such malfunctions compromise the safety of AirTran's workers and customers.

The Family and Medical Leave Act can be difficult for any Wisconsin worker to understand. In fact, it can be hard for employers to understand, too. It's okay if employers get confused, but it is not okay if they blunder forward without making sure they are giving employees the consideration and respect they must have.

That may have been the case in a recent lawsuit. Recently, a woman told her boss that she was going to take time off under FMLA after her baby was born, which was five months in the future. At the time she gave her boss notice, she had not worked long enough to qualify for FMLA leave (1,250 hours in the past 12 months), but by the time her baby was to be born, she would be eligible.