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Milwaukee Employment Law Blog

Court rules that preexisting condition limits compensation

Wisconsin workers whose employers provide long-term disability insurance may find that their claims could be denied based on the nature of the injuries they seek compensation for. In one case in which a man's wife passed away, he claimed that her employer's denial of disability insurance benefits was unjust. A district court, however, dismissed his complaints and maintained the policy included a valid exclusion clause prohibiting benefits for disabilities caused by preexisting conditions.

In an opinion published by the Western District of Wisconsin District Court, it was noted that after being diagnosed with shoulder pain, the woman was prescribed a regimen consisting of physical therapy and painkillers. After beginning therapy and subsequently receiving an MRI, she discovered that she had a malignant tumor in her shoulder. She was later diagnosed with lung cancer that had spread to her liver and bones.

Religious accommodations in the workplace

The Civil Rights Act of 1964 protects employees in Wisconsin and around the country from discrimination based on race, age, gender or national origin, and it also requires employers to make reasonable accommodations when workers make requests of a religious nature. Such accommodations are usually straightforward and rarely amount to more than allowing employees to take short periods of time off to attend religious ceremonies or services, but companies may face difficult decisions when the worker concerned performs particularly hazardous or important work.

The law allows employers to refuse religious accommodations in situations where granting them would create undue levels of hardship, and courts have generally been called upon to determine if employers have acted fairly in these situations. Applicable federal law does not specify what are and what are not an unreasonable requests, but decisions from the Equal Employment Opportunity Commission do provide some guidance for employers facing these decisions.

Frequently broken laws by employers

Many Wisconsin workers assume that if their employer does something, it must be legal. This is in large part due to a belief that the company they work for knows the laws and would not break them. However, there are a number of laws that are violated regularly in workplaces today, including disciplining people for comments made on social media and telling employees they cannot discuss their wages.

Employees are often afraid of speaking about their employer on Facebook, Yelp or other forms of social media because they are afraid of recourse being taken against them. However, the National Labor Relations Board has stated that employers are not allowed to punish people in that regard. According to the agency, employees have the right to band together in an effort to make changes, and even if the only outcome of this is complaining, it is still a protected act.

How equal pay helps Wisconsin residents

The Equal Pay Act of 1963 says that workers must be paid equally for equal work regardless of their gender. Workers must also be paid in the same manner for performing substantial equal duties. For instance, if a male worker is paid an hourly rate to perform his duties, a female employee must receive the same rate. It is not acceptable to provide bonuses or other perks to make up for any difference in wages.

Furthermore, no employee can have his or her pay reduced to bring it in line with what another employee may make for doing the same job. Finally, equal work is determined by what an individual does as opposed to his or her title. If two people perform a task that requires equal skill and responsibility, those people should be paid equally regardless of their gender.

Employees can be fired while on medical leave in some cases

Employees in Wisconsin are entitled to take unpaid leave from their jobs if they have a health condition that makes them unable to work. According to the Family and Medical Leave Act, an employee can take an unpaid leave for up to 12 weeks a year. When an employee is planning to take medical leave or on medical leave, their employer is legally barred from preventing them from taking medical leave or punishing them for taking medical leave.

Until recently, there were some questions about whether employees are completely protected from termination during FMLA leave. The U.S. Court of Appeals for the 10th Circuit decided that an employer can legally fire an employee who is taking medical leave in some situations. An employee can be fired while they are taking medical leave if they had documented issues with their job performance and their employer's decision to fire them had nothing to do with the medical leave.

Companies that use temp workers are liable for wage theft

Many businesses in Wisconsin outsource labor by hiring temporary workers through staffing agencies. Because staffing agencies tend to pay low wages and offer no employment benefits, companies can save a lot of money using temp workers instead of full-time employees. Temp workers are employed by the outside temp agency rather than the company they are doing work for, so many companies think that they are not responsible for the way that these workers are treated.

On Jan. 20, the United States Department of Labor issued a memorandum about the use of temp workers by companies. According to the federal agency, employers that use subcontractors are responsible for any wage and hour law violations that affect the workers. The companies that hire temp workers could be found liable for wage theft even if they weren't in charge of paying the workers.

Understanding the Family and Medical Leave Act

Under the Family and Medical Leave Act, eligible employees are allowed to take up to 12 weeks of unpaid leave during a 12-month period for, among other reasons, health issues. However, employers may wonder if they are obligated to keep the employee in his or her job, especially if the employee was about to be terminated. Wisconsin employers who have questions regarding FMLA may be interested in reading about a recent ruling on this issue by the U.S. Court of Appeals for the 10th Circuit.

The court ruled that employers are allowed to terminate employees while they are on FMLA leave as long as their performance problems are documented, and the employer can show that itintended to fire the employee regardless of the FMLA leave. This action can still be taken even if an employee has fully recovered from an illness, or if the illness had nothing to do with poor work performance.

Whistle-blower lawsuit casts doubt on nicotine patch research

Wisconsin residents who want to stop smoking often rely on nicotine gum or patches to help them cope with intense tobacco cravings. Pharmaceutical companies laud the effectiveness of these products and claim that they have helped millions to overcome nicotine addiction, but a former researcher at a leading drug maker alleges that he was fired from his six-figure job after casting doubt on the veracity of these marketing claims.

The man claims in a lawsuit filed in New Jersey that he was criticized and had his annual bonus reduced before being terminated for pointing out that research into the use of nicotine replacement products may be inaccurate. He claims to have reported that the data used to compile the research in question was faulty and that nicotine patches could actually cause harm in some situations. The lawsuit claims that the man was well regarded at the company and had received numerous glowing reviews before raising these concerns.

Whistleblower protections improved in 2015

Wisconsin professionals and citizens who are considering taking whistleblower action may be interested to learn of multiple developments in 2015 that marked important milestones in how the practice is becoming more acceptable. In November 2015, the U.S. Securities and Exchange Commission published a report through its Office of the Whistleblower revealing that the agency received almost 4,000 tips during the last fiscal year. This was an increase of 8 percent from the previous fiscal year.

Of the tips shared with the SEC, upwards of 2,800 originated as phone calls placed by members of the general public. Almost half of the people who received awards for tips had at some time been employed by the companies they were reporting, and the SEC paid millions of dollars to whistleblowers for their reports.

FMLA and ADA leave

Workers in Wisconsin may have the right to take leave from work through the Family and Medical Leave Act or the Americans with Disability Act. Employers whose companies fall under FMLA as well as those with workers who have conditions covered by the ADA are subject to the leave rules.

The FMLA provides covered employees who are ill to take up to 12 weeks off from work unpaid. Covered employees may also take 12 weeks if they need to care for an ill family member. The leave is capped at 12 weeks in a 12-month period. If a person receives temporary disability pay through a disability policy, employers are allowed to count that time as part of the FMLA leave. Workers are allowed to substitute paid time off for the unpaid leave if they have accrued hours to take.

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