Milwaukee Employment Law Blog

On the eve of Mother's Day, we thought we would discuss a settlement reached at the end of April between Waupaca County and a sheriff's deputy who just happens to be a woman. While the county maintains there was no violation of the deputy's civil rights, the settlement awards the deputy back pay with interest, attorney's fees and damages -- about $142,000 all told.

Another part of the agreement goes directly to the deputy's complaint: The sheriff's office must promote the deputy to detective sergeant by 2015. It was the county's repeated denial of promotion applications that the deputy claims violated the Civil Rights Act.

A motor carrier company in Indiana, Celadon Trucking Services, Inc., was sued by the EEOC for allegedly requiring applicants to submit to physical examinations, in violation of the Americans With Disabilities Act ("ADA"). See EEOC v. Celadon Trucking Services, Inc., Cause No. 1:12-cv-0275-SEB-TAB. The problem, according to the EEOC, is not that Celadon required applicants to undergo a pre-employment physical examination, but that it did so before giving the applicants a conditional offer of employment.

Under the ADA, employers are allowed to conduct pre-employment medical examinations of job applicants. However, the medical examination may only be required after an offer of employment has been made and prior to the commencement of the employment duties. Further, under the ADA, an employer is allowed to condition an offer of employment on the results of the physical examination only if the following conditions are satisfied:

• All entering employees are subjected to such an examination regardless of disability;

• Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, subject to limited exceptions; and

• The results of such examination are used only in accordance the ADA.

Attorney Elizabeth A. Schmidt is an associate attorney with Alan C. Olson & Associates, S.C. If you have any questions about disability discrimination, please contact her at LSchmidt@Employee-Advocates.com.

Wal-Mart Stores, Inc. is having a tough time right now. Exxon-Mobile just bumped the mega-retailer from first place on the Fortune 500 list of revenue-generating U.S. companies. The company is facing allegations of bribing foreign government officials and may soon be hit with a related shareholder suit. With all of this, corporate leaders must have been relieved last week to settle a wage and hour claim brought by the U.S. Department of Labor.

Not as relieved, perhaps, as the 4,500 or so employees that will benefit from the $4.8 million settlement. The award includes back wages and estimated damages. Wal-Mart also agreed to pay $463,815 in civil penalties.

A postal worker was fired from his job for his prolonged period of absence. However, the former employee claims that it was a case of discrimination. The case addresses the definition of disability and return to work agreements.

The man was employed as a mail handler for the United States Postal Service in Milwaukee, where he suffered two injuries on the job. The first injury came in 1998 and took him away from work for two weeks. He hurt himself once again in May 2003 and only worked one week before he was finally let go in January 2006.

Last month, Wisconsin Gov. Scott Walker signed a bill that repealed the 2009 Equal Pay Enforcement Act. The law had allowed employees that have experienced compensation discrimination based on their protected status to pursue damage claims in state courts. Women especially were dismayed; the wage gap between men and women is very real.

The governor and proponents of the repeal said the law had no effect beyond "lining the pockets of trial lawyers." Wage gap data tells a different story: In 2009, Wisconsin ranked 36th in terms of gender parity in the workplace. New data shows a marked improvement: The state ranked 25th.

During World War II, Rosie the Riveter became the symbol of women at work, women doing men's work for the good of society. Things changed after the war, and women have been playing catch-up ever since -- especially when it comes to wages.

Under both federal and Wisconsin state law, men and women must be given equal pay for equal work. However, the daily reality for millions of working women is unfortunately a far cry from this ideal aspiration. Statistics verify that women in the U.S. continue to earn significantly less than their male co-workers, even when they are performing the same work side by side.

We are still discussing a recent U.S. Supreme Court decision about the Privacy Act and its waiver of sovereign immunity. The plaintiff sued a handful of federal agencies when his HIV status was made public; the agencies had shared information about him, including his application for Social Security disability benefits. In the majority opinion, the court focused on the act allowing individuals to file civil actions if they suffered "actual damages" because of an agency's violation.

Sovereign immunity generally bars lawsuits against the government. Lawsuits are allowed when the government does something that a government shouldn't do -- a wrongful conviction, for example -- and when the statute or the federal code like the Privacy Act says that a government's violation of the law opens it up to private actions. Sovereign immunity acts a little like Star Trek's shields. The government lowers them in some cases and keeps them up in others.

The decision of the U.S. Supreme Court in a Privacy Act case has caused a stir among consumer advocates and in legal circles. The plaintiff accused the Federal Aviation Administration, the Social Security Administration and the United States Department of Transportation of violating the Privacy Act when the agencies shared information about his Social Security long-term disability benefits. As we said in our last post, the majority decision turned on the Privacy Act's use of the term "actual damages."

The Privacy Act addresses how the government deals with the massive amount of personal data different agencies hold about all of us. Think about Al Capone -- the FBI could not make criminal charges stick, until someone looked at Capone's tax records. He was eventually convicted of tax evasion. Granted, that was a criminal matter, but in those days, the government considered any information shared with one agency to be open to all agencies.