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Searching for Articles published in June 2016.
Found 5 Results.

Wisconsin Court of Appeals Rejects Labor and Industry Review Commission's Worker's Compensation Determination as Unreasonable

Posted on June 28, 2016, Authored by Russell W. Wilson, Filed under Employment

Circuit courts and appellate courts commonly apply “great weight deference” to worker’s compensation benefit determinations made by the Labor and Industry Review Commission (“LIRC”), but not this time.  In an unpublished opinion issued by the Wisconsin Court of Appeals on June 21, 2016, the appellate court found that LIRC impermissibly read into a statute an element the legislature did not put there.  Accordingly, the court of appeals reversed LIRC’s denial of disability (i.e. indemnity) benefits, and sent the case back to LIRC for a determination as to whether the employee underwent surgery in good faith so as to trigger payment of benefits. To be clear, the reversal and remand applies to one issue, but it is an important one that commonly recurs in worker’s compensation.  In this case the employee reported symptoms about, and sought medical treatment for, neck and shoulder problems that manifested one day while she continually performed work above her shoulder level (here, scanning items on a shelf with the use of a hand-held scanning device).  The ultimate medical question was whether she had a muscle strain or a nerve problem cause by degenerative arthritis in her cervical spine.  The ultimate answer was that she had both, but only the muscle strain (which healed without resulting in permanent partial disability) was found to be a compensable injury.  The cervical spine/neurologic problem was eventually determined not to have been a compensable injury or condition under worker’s compensation, but not before she had the surgery on her cervical spine.  (The court of appeals affirmed LIRC on this issue.) Following the advice of her health care providers, the employee underwent a surgery to remove a disc and to fuse two vertebral levels in her cervical spine.  That major surgical procedure alone causes time off work (temporary total disability) and residual impairment (permanent partial disability).  Section 102.42(1m) under the Worker’s Compensation Act specifies the following criteria for disability benefits: (1)  the employee sustained a compensable injury (emphasis mine); (2)  he or she undertook invasive medical treatment; (3)  the treatment was undertaken in good faith; (4)  the treatment was generally medically acceptable, but unnecessary; and, (5)  the employee incurred a disability as a result of the treatment. LIRC construed section 102.42(1m) narrowly to require that the cervical spine condition had to be compensable in order to award any disability benefits connected to the surgery on the cervical spine.  The court of appeals ruled, however, that LIRC’s interpretation added a criterion that the legislature had not included in the statute.  The legislature had specified only that there be “a compensable injury.”  In this instance there was a compensable injury – the diagnosis of a muscle strain for which the employer conceded and paid benefits before it obtained the report of its independent medical examiner.  Finding LIRC’s narrow construction of the statute unreasonable, the court of appeals refused to apply the “great weight deference” review standard to LIRC’s decision.  The court of appeals sent the case back to LIRC for further fact finding as to whether the employee underwent the surgery in good faith.  Interestingly, there is a similar provision for the recovery of medical treatment expenses incurred in good faith (section 102.42(1) and other case law), but the employee did not assert a claim to recover for medical expenses. The case is Flug v. Labor and Industry Review Commission, 2016 WL 3389965 and can be found here.  The decision will not be published.

NLRB to Unionized Employers - Hiring Permanent Strike Replacements is Not Always Lawful and Motive Now Matters

Posted on June 2, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

It is well settled that once a union exercises its weapon to engage in an economic strike, an employer is empowered to continue its business operations through hiring of permanent strike-replacement employees.  Whether a strike-replacement employee is “permanent” for the purposes of the National Labor Relations Act involves a fairly technical analysis, and includes the consideration of factors such as whether the employer appropriately notified the strike-replacement employee that his/her employment is for the purpose of replacing a striking worker, and that he or she is not expected to be displaced at the end of the strike.  Presently, the law also supports the use of at-will employment disclaimers in connection with the hiring of strike-replacement employees, and the use of disclaimer language suggesting that a settlement with the union could cause displacement, without precluding a finding of “permanency.”  However, the National Labor Relations Board, in American Baptist Homes of the West d/b/a Piedmont Gardens, 364 NLRB No. 13 (2016), recently placed unionized companies on notice that motive now matters too, as explained below. In American Baptist Homes of the West d/b/a Piedmont Gardens, the Board opined: …[T]he permanent replacement of strikers is not always lawful.  The Board will find a violation of the Act if it is shown that, in hiring the permanent replacements, the employer was motivated by an independent unlawful purpose. Significantly, in this case, the Board rejected the administrative law judge’s ruling that an “independent unlawful purpose” sufficient to make the hiring of strike-replacement employees unlawful, must be “unrelated or extrinsic to the parties’ bargaining relationship or the underlying strike.” In other words, the administrative law judge took the position that an employer’s motives underlying the hiring of replacement workers was not outcome determinative.    In American Baptist Homes of the West d/b/a Piedmont Gardens, however, the Board cited two pieces of evidence that supported a finding of unlawful motive, which made the hiring of replacement workers unlawful: (1) the company’s legal counsel told the union’s attorney that the decision to hire replacement workers was motivated by a desire to “teach the strikers and the union a lesson;” and (2) the company’s Executive Director admitted that the decision to hire replacement workers was motivated by a desire to “avoid any future strikes,” which the Board found to interfere with future protected activity.    This decision, however, is a significant departure from decades old Board law, which previously stood for the proposition that “motive is immaterial” when scrutinizing an employer’s decision to hire strike-replacement employees [from Hot Shoppes, Inc., 146 NLRB 802, 805 (1964)]. The takeaway for unionized employers facing the prospect of an economic strike is that under the current regime, an employer’s motives for hiring strike-replacement employees will be closely scrutinized by the Board.   This means extra care must be exercised in connection with internal and external communications, whether orally or in writing, related to the process of hiring replacement workers.  Employers must take great care to ensure that internal and external job advertisements, employment application forms and other personnel intake forms are properly worded to avoid any suggestion of anti-union animus in connection with the hiring of strike-replacement workers.

Wetlands Determinations - Uncertainty for the Clean Water Rule?

Posted on June 30, 2016, Authored by Russell W. Wilson,

On May 31, 2016, the United States Supreme Court issued its decision in United States Army Corps of Engineers v. Hawkes Co., Inc. holding that approved judicial determinations as to the presence of wetlands issued by the Corps of Engineers constitute “final agency action,” which allows property owners to seek judicial review.  As a result of this decision, property owners no longer face the twin dilemma of (a) proceeding to develop what they believe to be uplands only to face potential civil and criminal enforcement by the Corps of Engineers and/or the U.S. Environmental Protection Agency or (b) applying for a section 404 permit, thereby conceding the existence of wetlands and incurring the cost of protracted, costly ecological studies.  See my prior article Bypassing Scylla and Charybdis:  Pre-enforcement Judicial Review of Wetlands Determinations Under the Clean Water Act.  Given the court’s unanimous decision in Sackett v. EPA, 132 S. Ct. 1367 (2012), the outcome in Hawkes is not surprising.  Justice Roberts wrote the decision in which Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan joined.  Justice Kagan filed a concurring opinion and Justice Ginsberg filed an opinion concurring in part and concurring in the judgment.  There were no dissents among the currently-constituted eight member court.  The interesting and portentous aspect, however, is the concurring opinion written by Justice Kennedy in which Justices Thomas and Alito concurred. Recall that Justice Kennedy articulated the “significant nexus” test of jurisdiction under the Clean Water Act as the concurring-in-the result (but not in the rationale) vote in Rapanos v. United States, 547 U.S. 715 (2006).  As a result, the EPA and the Corps of Engineers developed a new definition of the “waters of the United States,” which it announced as the Clean Water Rule in 2015.  This new definition was written to meet the “significant nexus” analysis as described by Justice Kennedy and as supplemented by the agencies.  See my prior article Definition of “Waters of the United States” Under the Clean Water Act (CWA). The EPA and the Corps jointly regulate and enforce activities and development in wetlands under the CWA.  Enforcement of the new definition has been stayed nationwide pending legal challenges in the Sixth Circuit Court of Appeals and in other federal district courts.  See my prior article WOTUS: Nationwide Stay of Proceedings.    Eventually the challenge to the new definition of the “waters of the United States,” which is to say the jurisdiction of the CWA, will reach the Supreme Court.  How Justice Kennedy will view that definition is very likely to matter a lot.  (The new definition was not before the Supreme Court in Hawkes.) Justice Kennedy’s concurring opinion in Hawkes would appear to foreshadow a rough road for the new definition.  Justice Kennedy’s opinion begins with the statement that he joins the Court’s opinion “in full” not as a qualification, but rather as a point of emphasis because “ . . . the reach and systemic consequences of the Clean Water Act remain a cause of concern.”  Justice Kennedy cites Justice Alito’s statement for the proposition that the reach of the CWA is “notoriously unclear.”  Justice Alito was part of the plurality opinion in Rapanos that would have overturned the prior definition of the “waters of the United States” with just one more vote.  See my prior article Rapanos v. United States:  The Narrow View, The Broad View, and the Search for the Significant Nexus to Clean Water Act Jurisdiction.   Justice Kennedy’s short concurrence in Hawkes concludes with his observation that the CWA “ . . . especially without the [jurisdictional determination] procedure were the government permitted to foreclose it, continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”  How significant is Justice Kennedy’s qualification (“ . . . especially without the JD procedure were the government permitted to foreclose it . . .”)?  And what will be the composition of the Supreme Court when the ninth justice is appointed to take the place of Justice Scalia, who authored the plurality opinion in Rapanos?  It is likely to take two more Supreme Court terms before the answer will become known.

Withdrawal of Recognition of Union – Automatic Complaint

Posted on June 29, 2016, Authored by Dean R. Dietrich, Filed under Employment

Recent action by the National Labor Relations Board has challenged a long-standing labor precedent that may directly affect Wisconsin companies because of the implementation of the Wisconsin Right-to-Work Law.  Because of the Right-to-Work Law, many companies with union representation of its employees are learning the employees no longer support the union and are withdrawing the right of the union to insist upon union dues taken from the employee paycheck.  In some instances, this action has shown that a majority of the employees no longer want to be represented by the union.  Unfortunately, recent action by the National Labor Relations Board has limited the right of an employer to withdraw its recognition of the union representing company employees.  General Counsel Richard Griffin of the NLRB has ordered that the NLRB issue a complaint against the company every time a company decides to withdraw recognition from a union unless the union has been decertified by a secret ballot vote held by the NLRB.  As a result, any employer that decides to withdraw recognition of a union based upon information such as a majority of employees deciding not to have dues deducted will be subject to an unfair labor practice complaint by the NLRB even though the prior precedent of the NLRB allowed for withdrawal of recognition if the company had “objective evidence” the employees no longer wish to be represented by the union.  The withdrawal of dues deduction authorization by a majority of the employees would be that type of “objective evidence” that would allow for a company to withdraw its recognition of the union. As a result of this directive from NLRB General Counsel, any company is at risk of a ULP complaint if they decide to take action to withdraw recognition of the union even though the employees have provided clear evidence that they do not wish to be represented by the union.  It is likely this change in policy of the NLRB will be litigated in the courts but for now, any company that voluntarily withdraws recognition of the union will be subject to litigation from the NLRB.

New Wisconsin Organ and Bone Marrow Donation Leave Law Becomes Effective July 1, 2016

Posted on June 23, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

Some may have forgotten that on April 1, 2016, Governor Walker signed a new law providing qualifying employees with the right to take up to 6 weeks of unpaid leave from work in a 12-month period, to serve as bone marrow and organ donors. The new law, 2015 Wisconsin Act 345, becomes effective on July 1, 2016—just over one week away.  So…it makes sense to refresh your collective memories about what the new law entails.  First, as with the Wisconsin Family Medical Leave Act, the new bone marrow and organ donation leave law applies to employers in Wisconsin who employ a minimum of 50 individuals on a “permanent basis,” as defined by administrative regulation.  An employee of a covered employer becomes eligible for leave under the new law when he or she: Has worked for the employer for 52 consecutive weeks; and Has worked at least 1,000 hours in the last 52-week period prior to requesting leave. Although implementing regulations are not yet available, it’s reasonable to anticipate the new law will be interpreted and applied in a manner similar to the Wisconsin and federal Family Medical Leave laws.  So, for example, it is reasonable to assume that “hours paid,” not simply “hours worked,” will be credited toward the “1,000” hour threshold.  It is also reasonable to assume employers will be permitted to designate a particular method for measuring the 12-month period during which leave may be utilized [i.e., calendar year, rolling year, etc.].  However, as of this post, we simply don’t know have answers to these, and several other questions.  Leave under the new law is unpaid, but employees are permitted to substitute accrued but unused paid leave.  There are many other familiar feeling aspects of the new law, including employee notice requirements, medical certification option, and certain job restoration protections. In light of the new law, employers are encouraged to quickly update employee handbooks and post the new notice of rights poster, as soon as the Department of Workforce Development makes it available.