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Searching for Articles published in March 2015.
Found 12 Results.

Light-Duty for Pregnant Employees – The Story Continues

On Wednesday, the United States Supreme Court overturned a decision from the 4th Circuit Court of Appeals that granted summary judgment to United Parcel Service dismissing a claim by an employee for pregnancy discrimination. The U.S. Supreme Court overturned the Court of Appeals decision and kept alive a claim by a pregnant employee that the employee should be able to work a light-duty assignment at the company just like other employees who suffered a work-related injury. The employee claimed pregnancy discrimination when the company refused to allow her to perform a light-duty assignment that others were allowed to perform because of a work-related injury. The case now goes back to the Federal District Court for a full trial on the merits of the claim. This decision continues the saga regarding pregnancy discrimination and light-duty assignments for a pregnant employee. Many companies have a policy that limits light-duty assignments to those employees that suffer a work-related injury in order to assist the employee in returning to regular duties. The EEOC recently changed its position and declared that it was pregnancy discrimination to prohibit a pregnant employee from performing light-duty assignments just like other employees. This recent U.S. Supreme Court decision seems to support the EEOC Guidelines and now opens the door for more litigation over what type of limited-duty assignment must be given to a pregnant employee.  While this litigation is being taken under federal regulations, it is still relevant to Wisconsin employers because of the similarity in the state statutes to federal law regarding pregnancy discrimination. Employers will have to watch this case closely and perhaps adjust how they consider the handling of limited-duty work for pregnant employees.

Right to Work for Public Sector Employees?

Wisconsin has become a right to work state this week. It is clear that the legislation signed by the Governor does not apply to public sector employees such as public safety and transit employees. Local governments will still be required to negotiate over fair share dues for these bargaining units. A case before the United States Supreme Court may, however, change all of that. Recently, the National Right to Work Legal Defense Foundation sought US Supreme Court review of a decision involving teachers in the state of California who are challenging the obligation to pay union fees. This is a suit that was brought against the National Education Association and the California Teachers Association in April of 2013. The National Right to Work Legal Defense Foundation has asked the United States Supreme Court to grant a certiorari petition which would result in a review of the 1977 Abood ruling which allowed states to pass laws requiring public workers to pay fair share dues. The Foundation is looking to overturn the 1977 decision based upon a recent Supreme Court ruling in 2014 that held workers who provided in-home care to Medicaid recipients in Illinois were not required to pay fair share dues to the union that was representing their interests in front of state agencies. This is known as the Harris v. Quinn decision. Although the Harris v. Quinn decision is based on a different set of facts, it signaled the willingness of the Supreme Court to review the 1977 decision that held it constitutional to require public workers to pay fair share dues. It is not clear whether the Supreme Court will accept certiorari and review the decisions involving a challenge to fair share dues from a group of California teachers. Several Justices have expressed an interest in pursuing a further review of the prior decisions on this topic. The end result could be a review of the constitutionality of requiring public sector employees to pay fair share dues in those instances where collective bargaining on all topics continues to occur. For now, Wisconsin employers are still subject to the provisions in the existing labor agreements that call for fair share dues being paid by every employee in the public safety or transit bargaining unit.

Interacting with the Public is a Disability?

A recent decision from the 4th Circuit Court of Appeals has opened the door for a lawsuit by an employee claiming that she suffered from a “social anxiety disorder” which impacted her ability to have personal interaction with others. In a decision involving the North Carolina Administrative Office of the Courts, an employee has claimed discrimination because she suffered from a disorder that impacted her ability to work with the public and provide customer service at the front counter of the Office.  In this decision, Court of Appeals allowed the case to proceed to trial and was very critical of the Federal District Court decision that granted summary judgment for the North Carolina Administrative Office of the Courts. In its decision, the Court of Appeals criticized the Administrative Office of the Courts for failure to acknowledge the disabling condition suffered by the employee and failing to engage in an interactive process with the employee to determine whether reasonable accommodations could be provided for her “social anxiety disorder.”  The important aspect of this decision is that the Court of Appeals agreed with the EEOC that “interacting with others is a major life activity” for which protection must be provided in the form of an accommodation if an employee cannot engage in such activity without restriction or limitation. The Court of Appeals also acknowledged that the recent edition of the Diagnostic and Statistical Manual (DSM-IV) describes social anxiety disorder as a condition that “interferes significantly with the person’s normal routine occupational… functioning, or social activities or relationships.” Under this analysis, the Court of Appeals held that social anxiety disorder is a disability and must be accommodated by an employer. As this case proceeds to trial, the Administrative Office of the Courts will have to show why it failed to engage in an interactive process with the employee to discuss the physical and mental limitations the employee experienced based on this disorder and whether the employer could reasonably accommodate these limitations. The Court of Appeals recognized that the employer must engage in an interactive process and the failure to do so is a potential defect to the employer’s position which could ultimately find the employer liable for a failure to accommodate the disabling condition. Employers are reminded that the interactive process is a critical item that must be addressed when learning an employee suffers from a disability that must be accommodated by the employer.

Congress Tries to Stop Quickie Election Rules

Action was taken by the United States Senate seeking to stop the implementation of the “quickie election” regulations scheduled to take effect in April. The Senate passed Senate Joint Resolution 8 to attempt to stall the implementation of these new Rules. While this is an effort that has support from the majority in the Senate and House of Representatives, it is unlikely that this legislation will pass the review from the President. The end result will continue to leave the “quickie election” rules in limbo. The Joint Resolution passed by the Senate calls for blocking of rules covering disputed representation cases and require the NLRB to get congressional approval to implement any similar type of rule. These rules are to take effect in mid-April and would greatly affect the union election proceedings that result in a vote to determine whether a group of employees wish to be represented by a union. Please see these past posts for more background information.  NLRB Finalizes Union Election Rules to "Modernize" and "Streamline" Election Process at Nonunion Workplaces Lawsuit Challenges NLRB Rules on Quickie Election A Quick Fix to the Quickie Election Rules? It is certainly not clear whether this Joint Resolution will really have any impact at all.  The attempt is to show there is not legislative support for the actions being taken by the National Labor Relations Board. There is litigation pending in the D.C. Federal Court to block the enforcement of these new regulations, but the status of that litigation is also unclear. It is not clear whether the litigation will stop the initial implementation of these rules. Employers should be careful about the potential for union election petitions being filed for representation of company employees. It is better to be prepared than to rely upon potential litigation to possibly block the implementation of these rules.  

Annual CWSHRM Human Resources & Labor Law Conference - 2015

Posted on March 1, 2015, Authored by ,

Holiday Inn and Suites 1000 Imperial Ave Rothschild, WI 54474 7:30 am Registration and Continental Breakfast 8:00 am Introductions 8:15 am Opening Keynote Presentation: STRATEGIC HR - THE NORMAL PLAY BOOK WON’T GET YOU THERE - Margaret Morford 10:15 am Break & Networking 10:30 am Legal Workshop: “IT’S ELEMENTARY, MY DEAR WATSON!” TIPS AND TRAPS IN CONDUCTING WORKPLACE INVESTIGATIONS Ruder Ware Attorney - Sara Ackermann Whether it is a claim about bullying, harassment, discrimination, drug possession, or a whistleblower, an effective investigation is usually the first step an organization must take in response to workplace complaints. Attorneys Ackermann and Terry will cover several issues, including the following: Why are investigations important? When must an investigation be commenced? How do we choose an investigator? Who should be interviewed? What if we can’t tell who is telling the truth? Bring your smoking jacket! 11:45 am Plated Lunch 12:45 pm Legal Workshop: EEOC UPDATE: RETALIATION CLAIMS AND MORE! Ruder Ware Attorney Dean Dietrich The EEOC has recently announced that retaliation claims are the most prevalent type of claim pursued by the EEOC. Attorneys Dietrich and Bohrer will cover the EEOC’s commitment to eradicating discrimination from the workplace, including the complexities of retaliation. Learn how to minimize the risk of your organization being the target of an EEOC investigation. 2:00 pm Break & Networking 2:15 pm Closing Presentation: MAKING THE HORSE DRINK - HOW TO GET SUPERVISORS TO DOCUMENT WITHOUT BEATING THEM - Margaret Morford

“In Sickness and in Health…”: DOL Issues Final Rule Granting FMLA Rights to Married Same-Sex Couples

Posted on March 10, 2015, Authored by Sara J. Ackermann
Sara J. Ackermann
Attorney
Wausau Office
, Filed under Employment

In a win for same-sex married couples, the DOL has revised the FMLA so that employees in legal same-sex marriages can take FMLA leave to care for their spouse or family member, regardless of where they live. The regulation is effective March 27, 2015. For the full legal update, including a summary of what this means for Wisconsin employers, click here. 

The Fourth Circuit U.S. Court of Appeals Applies the “Significant Nexus” Test in Wetlands Litigation

Posted on March 16, 2015, Authored by Russell W. Wilson
Russell W. Wilson
Attorney
Wausau Office
,

On March 10, 2015, the United States Court of Appeals for the Fourth Circuit issued an unpublished decision in Precon Development Corporation, Incorporated v. United States Army Corps of Engineers (link to Decision).  Unpublished decisions are not binding in the Fourth Circuit. The decision applies the “significant nexus test” of U.S. Army Corps of Engineers (“Corps”) jurisdiction over wetlands under section 404 of the Clean Water Act (“CWA”) from Justice Kennedy’s opinion concurring in the judgment in Rapanos v. United States, 547 U.S. 715 (2006).  Application of the test is case specific, and thus fact intensive, in the absence of more specific regulations of wetlands. Presently, the United States Environmental Protection Agency (“EPA”) and the Corps have pending a jointly proposed definition of the “waters of the United States.” Until a new regulatory definition is promulgated, however, the exercise of the Corps’ jurisdiction over wetlands near tributaries of traditionally navigable waters remains a case specific exercise. In this instance, Precon Development Corporation, Incorporated (“Precon”) and the Corps have been battling over issuance of a wetlands permit for about 13 years. Background Precon applied to the Corps under section 404 of the CWA for a permit to fill 4.8 acres of wetlands for a proposed mixed-use development, but the Corps denied the permit. Litigation followed at the administrative level, in the federal district court, and in the Fourth Circuit Court of Appeals. The case had reached the Fourth Circuit previously in 2011 (“Precon I”). At that time the Fourth Circuit concluded that the Corps had not provided sufficient evidence to support jurisdiction and it sent the case back to the district court for further proceedings. While the Fourth Circuit held in Precon I that a nexus existed, it was not persuaded at that time that the nexus was significant. When the case made its way back to the Fourth Circuit, it found that the Corps “has now amassed adequate evidence” that the nexus is indeed significant. The Fourth Circuit accordingly affirmed the district court’s grant of summary judgment to the Corps. The effect is that the permit application is denied. It is not known at this time whether Precon will petition for review by the United States Supreme Court. The “Significant Nexus Test” The Fourth Circuit succinctly described Justice Kennedy’s articulation of the significant nexus test of jurisdiction under the CWA in Rapanos. “A significant nexus exists when ‘the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of ‘ traditional navigable waters. . . No significant nexus exists when the ‘wetlands’ effects on water quality [of traditional navigable waters] are speculative or insubstantial.’” [Internal citations omitted.] The Fourth Circuit further relied on Justice Kennedy’s characterization of the test as a “flexible ecological inquiry” in which quantitative or qualitative evidence may support jurisdiction.  Moreover, the Fourth Circuit recognizes the effects of cumulative impacts.  Quoting the Corps’ brief, to do otherwise, would allow “death by a thousand cuts.” The Fourth Circuit also pointed out the distinction between a permitting case (in which harm to wetlands has not yet occurred) and a civil enforcement action by the agency against the violator (in which harm has occurred).  The Fourth Circuit emphasizes that the purpose of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.  A permit is required so as to prevent harm from occurring.  Accordingly, in a permit case it cannot be expected that the Corps would present evidence of actual environmental damage.  Rather, the type of evidence to be expected in a permitting case focuses upon what ecological harm might be prevented by denying the permit. The Ecological Setting The relevant geographic region encompasses 448 acres of similarly situated wetlands.  As noted, 4.8 of the wetland acreage is the subject of Precon’s proposed development.  Precon’s 4.8 acres are adjacent to a 2,500-foot long unnamed, man-made drainage ditch.  The unnamed ditch connects to Saint Brides Ditch, which is about 3 miles long.  Saint Brides Ditch connects to an unnamed tributary.  Collectively, the unnamed ditch, Saint Brides Ditch, and the unnamed tributary are characterized as tributaries that form a channel.  The channel connects to the traditionally navigable Northwest River in the vicinity of Chesapeake, Virginia.  The distance from Precon’s 4.8 acres to the Northwest River is about 7 miles. The Flexible Ecological Inquiry While the Fourth Circuit had recognized water storage capacity and potential flow rates in Precon I, it felt that actual flow data was lacking.  And while it had noted that tributaries trap sediment and nitrogen and perform flood control functions, it found the evidentiary record silent as to whether the Northwest River actually has high levels of nitrogen or sediment and whether that river is prone to flooding. On remand to the district court, the Corps produced flow data compiled by the City of Chesapeake for storm water management purposes.  In addition, the Corps produced its own documentation and photographic evidence of flow.  In contrast, Precon’s expert witness, who visited the site biweekly from mid-September to mid-December testified to an absence of measurable flow.  That expert admitted that precipitation during that particular season of the year would be below normal.  The Corps found its own evidence of flow more persuasive than that of Precon’s expert, and the Fourth Circuit recognized that in doing so the Corps had exercised its discretion and had not acted arbitrarily or capriciously. As for downstream impacts on the traditionally navigable water, the Corps presented three scientific studies:  “Total Maximum Daily Load Development for the Northwest River Watershed, A Total Phosphorus TMDL Due to Low Dissolved Oxygen Impairment”; “City of Chesapeake: A Plan for the Northwest River Watershed (March 2010)”; and, the Virginia Department of Environmental Quality’s “Final 2010 305(b)/303(d) Water Quality Assessment Integrated Report.”  The Fourth Circuit recognized that phosphorus and nitrogen are both nutrients too much of which cause low levels of dissolved oxygen.  The record demonstrates that the Northwest River indeed suffers from low oxygen.  The Fourth Circuit recognized that filling the wetlands would prevent the trapping of nutrients, which in turn would worsen the low oxygen levels in the Northwest River. The Fourth Circuit also recognized that a subdivision across the Saint Brides Ditch from Precon’s 4.8 acres had been flooded twice within the past 15 years.  The Fourth Circuit found that the wetlands’ functions of storing water and slowing flow are significant. The Fourth Circuit also recognized new evidence in the record of carbon sequestration in the form of the photosynthetic process, biomass accumulation, and feeding by the bottom level of the food chain on organic matter, which supports the food chain and wildlife.  The Corps again rejected the contrary opinion of Precon’s expert; the Fourth Circuit found that doing so lay within the Corps’ discretion.  The Corps documented the presence of “deer, squirrels, songbirds, reptiles, and amphibians” and an endangered species of rattlesnake.  Precon’s expert testified that he did not observe “any fish, wading birds, fish-eating birds, water fowl, or aquatic mammals” when he visited the area.  That visit, however, was made on February 4, 2012.  The Fourth Circuit observed that “[t]he Corps’ decision to reject Dr. Cahoon’s finding was within its discretion, especially given that cold temperatures and low rainfall in February 2012 made the region unappealing to fish.” Summary The effect of Rapanos, which was decided in 2006, is to make Corps’ jurisdiction over wetlands a case-specific, fact-intensive ecological study in the absence of more specific regulations to define the “waters of the United States” under the Clean Water Act.  Ecological studies of this nature are scientific studies to determine whether the wetlands hold a significant nexus to the chemical, physical, and biological integrity of the Nation’s waters, as articulated by Justice Kennedy in his opinion concurring in the result of that case.  The process can be protracted, costly, and uncertain, as seen in Precon’s 13-year permit quest.  In judging the scientific rigor and validity of such ecological studies, the Corps is entitled to exercise its discretion and judgment so long as its decisions are not arbitrary or capricious. The EPA and the Corps have proposed a regulatory definition of the “waters of the United States” that would simplify this process in response to Justice Kennedy’s opinion concurring in the result in Rapanos.

Quickie Election Rules Likely Veto of Legislation

On March 19, the U.S. House of Representatives passed a resolution to block the National Labor Relations Board from implementing the “quickie election” (or “ambush election”) rule. This legislation was previously approved by the U.S. Senate and now goes to the President for consideration. It is likely the President will veto this legislation which means the “quickie election” rules would still be in effect and are intended to be implemented on April 14. There is pending litigation that may stop the implementation of these new rules that address the processing of a union representation election but any court action is still up in the air.  As we have noted, the “quickie election” rules are scheduled to go into effect on April 14. They contain a number of changes to the current union representation election proceedings including eliminating a twenty-five day delay that can occur throughout the process and limiting the amount of arguments an employer can make to exclude employees from eligibility to vote in the union election.  The practical effect of these election rule changes is to significantly expedite the election process and thereby prevent an employer from having the time to effectively advocate for non-union status at the company facilities. Employers must be very sensitive to whether there are union election activities occurring in the workplace because there will be a very limited time to advocate against union representation if an election petition is filed and these rules are still in force. The company will be required to respond almost immediately with a list of eligible employees and will not be able to argue for exclusion of certain employees from the election process until after the election has been held.  Many employers are preparing a union election campaign strategy and putting that in place in order to be ready if a union election petition is filed. Hopefully, the courts in Washington D.C. and Texas will issue a temporary injunction to block the implementation of these new rules; however, there is no guarantee that will happen.

Attorney G. Lane Ware Honored as a Champion of Business by Junior Achievement

Posted on March 6, 2015, Authored by ,

Ruder Ware is pleased to announce the selection of G. Lane Ware as a Champions of Business honoree by Junior Achievement of Northcentral Wisconsin.  Honorees represent successful business leaders who helped make the Wausau area and North Central Wisconsin economy grow.  Ware joins fellow honorees Daniel Plumer and Robert C. Greenheck. From Junior Achievement's press release announcing the honorees: G. Lane Ware was a prominent attorney and civic leader in central Wisconsin for 49 years and represented numerous Wausau area businesses and major corporations in corporate and governance issues. His experience in business and securities law played a key role in the growth and expansion of many area businesses. Lane Ware began his legal career at the Ruder & Staples law firm after graduating from the University of Wisconsin Madison Law School in 1965. Ware led his firm through a tremendous growth period as president from 1972-1999. Today, the firm that bears his name, Ruder Ware, employs nearly 40 attorneys in Wausau and Eau Claire. A proven leader in both his profession and his community, Ware served as president of the State Bar of Wisconsin, the Marathon County Bar Association, the Wisconsin Law Foundation, the Wisconsin Law Alumni Association, Central Wausau Progress, the Wausau Region Chamber of Commerce, the Marathon County Economic Development Corporation and the Wausau Area Performing Arts Foundation. Sadly, Lane Ware passed away June 5, 2014. The evening event will be held on May 14, 2015 at the Jefferson Street Inn.  Additional detail can be found at http://www.championsofbusiness.org/.

“In Sickness and in Health…”: DOL Issues Final Rule Granting FMLA Rights to Married Same-Sex Couples

Posted on March 10, 2015, Authored by Sara J. Ackermann
Sara J. Ackermann
Attorney
Wausau Office
,

The DOL issued a Final Rule revising the Family and Medical Leave Act's (FMLA) definition so that eligible employees in legal same-sex and common law marriages can take FMLA leave to care for their spouse or family member, regardless of where they live. The regulation is effective March 27, 2015. The DOL has moved from a "state of residence" rule to a rule based on where the marriage was entered into ("place of celebration") to ensure that all legally married couples, whether opposite-sex or same-sex, will have consistent federal family leave rights regardless of where they live. Under the place of celebration rule, eligibility for FMLA leave to care for a spouse with a serious medical condition will now depend on the law of the state in which the marriage took place. Previously, the definition of "spouse" based on the state of residence rule meant that legally married same-sex couples who resided in a state that did not recognize same-sex marriage were not treated as spouses under the FMLA. Now, a same-sex couple that is legally married but has moved to a state that does not recognize same-sex marriage will nevertheless enjoy the same rights under the FMLA as other legally married couples. The new rule is intended to bring FMLA regulations in sync with the US Supreme Court's ruling in United States v. Windsor, which struck down the federal Defense of Marriage Act limiting marriage to opposite-sex couples (133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013)). Following the Supreme Court's decision in Windsor, the DOL updated its public guidance to remove references to the Defense of Marriage Act (DOMA) restrictions and to expressly state that the FMLA's definition of spouse is no longer limited to opposite-sex marriages and spouses (see DOL: Wage and Hour Division Fact Sheet #28F). What does this mean for Wisconsin employers? Effective March 27, 2015, your employees in a legal same-sex marriage have the same eligibility for FMLA leave as those in legal opposite-sex marriages. However, the amendment to the meaning of “spouse” under the federal FMLA does not affect the Wisconsin Family Medical Leave Act (WFMLA). Note that the WFMLA is broader in scope then the federal FMLA as it not only recognizes the right of an employee to take a leave of absence for the serious health condition of a “spouse,” defined as “an employee’s legal husband or wife” (including a same-sex spouse), but also provides leave rights to employees engaged in domestic partnerships.  The WFMLA defines “domestic partner” in one of two ways. First, domestic partner can mean two individuals who: (i) are 18 years or older and competent to enter into a contract; (ii) are not married to or in a domestic partnership with anyone else; (iii) are not related by blood in a way that would prohibit marriage; (iv) consider themselves each other’s immediate family; (v) agree to be responsible for each other’s basic living expenses; and (vi) share a common residence. Second, domestic partners can be those who have signed and filed a declaration of domestic partnership in the office of the registrar of deeds of the county in which they reside. In Wisconsin, domestic partnerships can apply to same-sex couples who are not married as well as to opposite-sex couples who are not married. Therefore, even employees who are not legally married can be eligible for up to two weeks of WFMLA leave if they are part of a domestic partnership recognized under state law. IF you have questions about the difference between Wisconsin and federal FMLA laws, contact me or another attorney in our Employment Law Department.

Worker’s Compensation Death Benefits: 17-Year-Old Dairy Farm Worker Killed

Posted on March 4, 2015, Authored by Russell W. Wilson
Russell W. Wilson
Attorney
Wausau Office
, Filed under Employment

This post describes the worker’s compensation aspect of a tragic death—a 17-year-old boy was crushed when he was caught between a gate and a building while herding cows, according to OSHA’s Fatality/Catastrophe Weekly Incident Reports (11/28/2010). The worker, Juan Camacho, had worked at his employer’s dairy farm in Clark County for about two weeks before the accident, according to the Wisconsin Court of Appeals case that determined the outcome of the payment of death benefits, American Family Mutual Insurance Company v. Labor and Industry Review Commission, 2015 WL 789447, issued February 26, 2015. Much less was known about Juan Camacho than was known. He was thought to have had some secondary education in his native Mexico. He was in the United States illegally. After the worker’s compensation insurance carrier made a diligent search, no one who might have qualified as a “dependent” for purposes of worker’s compensation could be identified. The American Family case illustrates two points. First, when an on-the-job injury results in death and where no one who is eligible for receipt of death benefits can be identified and located, death benefits are payable to the State of Wisconsin Work Injury Supplemental Benefit Fund (“WISBF”). In this case the Wisconsin Department of Justice, which represents the WISBF, filed a hearing application for payment of death benefits in the wake of Camacho’s death. There is nothing surprising about this procedure. While American Family did not dispute that death benefits were payable, it did contest the amount of those benefits. As a 17 year old dairy farm laborer, Juan Camacho’s wage rate was low. The Worker’s Compensation Act imposes, however, an important legal presumption. Where employees are under the age of 27, the law (specifically, section 102.11(1)(g)), presumes that the employee’s wage is the wage he or she probably would earn upon attaining the age of 27. Unless the employer is able to establish, by a preponderance of the evidence, the wage the employee would likely earn at age 27, the maximum wage in effect at the time of injury “shall be taken as equivalent” to the projected earnings. In this case the Labor and Industry Review Commission (“Commission”), which adopted the decision of the administrative law judge as the Commission’s own, determined that American Family’s vocational expert’s report failed to overcome the legal presumption by a preponderance of the evidence. The expert’s report observed that Juan Camacho’s projected earnings in Mexico at age 27 would be about $233 per month, which is less than the maximum wage for an injury in 2010 ($433 per month). Finding the expert’s report and the testimony of the employer unpersuasive, the Commission determined that the presumption had not been overcome by the preponderance of the evidence. Accordingly, the Commission awarded death benefits in the maximum amount for an injury in 2010, which totals $244,500, to be paid to the WISBF. The Wisconsin Court of Appeals reviewed the Commission’s decision. The appellate court found that the Commission’s factual determination (that the evidence did not overcome the presumption) was supported by substantial and credible evidence. The appellate court also found that the Commission is entitled to great deference in interpreting section 102.11(1)(g) and that the Commission’s interpretation (that the statute creates a rebuttable presumption in favor of the maximum wage) is reasonable. Accordingly, the court of appeals affirmed the Commission’s ruling. There is nothing surprising about these well-established principles. They illustrate what employers and insurance carriers can expect in the tragic instances of young workers who are killed in work-related accidents.

As Expected, Unions File Lawsuit to Challenge the Legality of Wisconsin’s Right-to-Work Law

Posted on March 11, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

Yesterday, as expected, several labor unions filed suit in the Dane County Circuit Court, challenging the constitutionality of Wisconsin’s Right-to-Work Law [2015 Wisconsin Act 1]. A copy of the complaint filed by the labor unions is available here:  Right to Work Complaint for Declaratory and Injunctive Relief Recently, labor unions in Indiana unsuccessfully challenged Indiana’s right-to-work law based upon constitutional grounds markedly similar to those asserted by the labor-union plaintiffs in the Wisconsin case. These legal arguments failed before the Indiana Supreme Court and the federal Seventh Circuit Court of Appeals [which presides over Illinois, Indiana and Wisconsin]. However, the dissenting Court opinion in the Seventh Circuit case was sympathetic to the labor unions’ constitutional arguments—which likely guided the plaintiffs in the Wisconsin case filed yesterday, and may have given the labor-union plaintiffs a reason for guarded optimism. One key to the legal challenge mounted in Wisconsin is the notion that unions are “forced” to exclusively represent “free riders” [those employees who are part of a bargaining unit but who choose not to become a member or pay union dues/fees]. Check out my previous blog on the so-called “free rider problem,” and the availability of “members-only” bargaining units as a solution to the problem, available here. This same argument was rejected by the Indiana Supreme Court—which concluded that “members-only” unions are a viable option, and that this option undermined the unions’ “takings clause” constitutional challenge—which was based upon the notion that a labor union’s only option is to be an exclusive-agency union [representing all workers—even those who are not members and do not pay dues/fees]. A copy of the Indiana Supreme Court decision is available here:  Indiana Supreme Court Decision. Interestingly, the labor-union plaintiffs in the Wisconsin case [see the above link for a copy of the complaint] take the position that Wisconsin’s Right-to-Work Law specifically prohibits “members-only” bargaining units, and requires exclusive-agency bargaining units—although the language of the Wisconsin Right-to-Work law is completely silent as to “members-only” bargaining units. Undoubtedly, those tasked with defending the constitutionality of Wisconsin’s Right-to-Work law will point out that the newly-enacted law does not expressly prohibit “members-only” bargaining units, and such “members-only” arrangements remain a viable option undermining the labor-union plaintiffs’ main argument in the Wisconsin case. This will undoubtedly be an interesting case to follow in the coming weeks and months. However, even if you don’t—rest assured that we will!