Employment Law Observer

In a recent summary judgment decision, the Eastern District of Wisconsin held that time spent by employees of staffing agencies both waiting for a job assignment and traveling to the job assignment if they were selected is not compensable time under the Fair Labor Standards Act (FLSA) and Wisconsin's Wage Payment and Collection Laws (WWPCL). The court's decision serves as a reminder for employers and employees alike that not all time spent by an employee for the benefit of, or required by, the employer is compensable time.

The U.S. District Court for the Western District of Wisconsin recently addressed an employer's responsibilities to accommodate an employee's religious beliefs. In EEOC v. Walmart Stores East, LP, the court examined whether Walmart was required to accommodate a candidate for an assistant manager position who informed Walmart—after he received his offer—that he could not work on Saturdays due to his religion. Walmart ultimately withdrew the offer of employment, but offered the employee the opportunity to seek a non-management position as well as the assistance of human resources in his job search. The employee refused Walmart's offer and asserted claims of religious discrimination and retaliation under Title VII.

Employers cannot force employees to take medical leave before they become eligible for FMLA leave. Nor can they lull an employee into believing they will be granted leave despite being ineligible, then terminate when they take leave. This seems like common sense, right? Hopefully so, but a recent Wisconsin district court case reminds us common sense does not always prevail in the workplace.

In a huge win for Wisconsin employers, the Wisconsin Supreme Court rejected the longstanding version of the inference method followed by the Labor Industry Review Commission (LIRC) to determine intent in disability discrimination cases involving conduct that manifests from the employee’s disability. It replaced LIRC’s method with a two-part inquiry that requires employees to prove (1) the employer took an adverse employment action against him or her because of conduct caused by his or her disability, and (2) the employer knew the employee’s conduct was caused by his disability.

Every employer has faced the unfortunate experience of hiring an employee whose performance fell well below expectation. As highlighted in the Seventh Circuit’s recent Ferrill v. Oak Creek-Franklin Joint School District decision, employers faced with poor performing employees should carefully address and document such shortcomings to ward off potential Title VII charges.

Governor Walker signed Assembly Bill 25 (2017 Wisconsin Act 11) on Wednesday reducing burdens carried by employers that rely on teenage labor.  The law became effective June 23, 2017.

Like most employers, Hormel Foods paid its employees from the time they punched-in to the time they punched-out. Prior to punching the clock, manufacturing employees were required to dress in a clean white jumpsuit, boots, hard hat, eye protection, hearing protection, and hair net. The reverse process was repeated after the employees punched out at the end of their shift. Each employee spent almost six minutes per day off the clock "donning" [putting on] and "doffing" [taking off] required clothing and equipment.

On April 30, 2015, the Wisconsin Supreme Court took a stand on a hot-button for employers by holding that continued at-will employment is legal consideration that will support a reasonably drafted restrictive covenant signed by a current employee. Runzheimer International, Inc. v. Friedlen, 2015 WI 45.

Wisconsin's Family Medical Leave Act (WFMLA) requires that employers allow their employees six weeks of unpaid leave following "[t]he birth of an employee's natural child." Wis. Stat. §103.10(3). The Act's substitution provision requires employers to allow an employee to substitute "paid or unpaid leave of any other type provided by the employer" for the unpaid leave provided by the statute. Id. §103.10(5)(b). In Sherfel v. Nelson, the Plaintiff, Joan Sherfel, exhausted her short-term disability benefit following the birth of her child. She then requested and was provided additional leave under the WFMLA. When Ms. Sherfel asked to substitute paid short-term disability leave for the unpaid WFMLA leave her employer refused because she was no longer short-term disabled as defined by the plan.