von Briesen & Roper, s.c. - Practice Area

Labor and Employment

Attorneys

Allen, Michael A.	Korom, James R.
Brosnan, Doris E.	McCaustland, Lynn F.
Dennehy, Daniel T.	Nelson, Steven L.
Elliott, Sarah J.	Platt, Sarah J.
Emery, Linda C.	Rynecki, Steven B.
Gulya, Kyle J.

Specialties

Articles

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Title	Created
Labor and Employment Law Update - July 2010 wage and hour, EEOC, final ADAAA regulations, tax credits under the Hire Act, Fair Labor Standards Act, OSHA revised regulations, i2p2, misclassification of workers, NLRB, unions	07/26/10
Wisconsin Supreme Court Finds That Personal Emails of Government Employees are Not Always Subject to Disclosure Under the Wisconsin Public Records Law In a much-awaited but complex, divisive and inconclusive decision, the Wisconsin Supreme Court found that personal, nonwork-related email communications of government employees were not disclosable under the Wisconsin's Open Records Law. In Schill v. Wisconsin Rapids School District, 2010 WI 86, the three-member Lead Opinion of the Court and one concurring Justice concluded that a records custodian should not release the content of an email that is purely personal and evinces no violation of law or policy. The law regarding whether a purely personal email communication made using government resources is a record subject to disclosure under the Open Records Law is not clear as a result of the Schill decision.	07/19/10
U.S. Supreme Court Supports Employer's Right to Review Employee's Text Messages Made Using Employer's Property In a much-awaited U.S. Supreme Court decision, the Court, in a narrow but unanimous conclusion, upheld a municipal employer's right to search and review the content of text message communications made by employees using the employer's property. In City of Ontario v. Quon, No. 08-1332 (2010), the Supreme Court concluded the City of Ontario Police Department and the Police Chief did not violate an employee's Fourth Amendment right to privacy by reading the employee's private text messages made while using City property.	06/22/10
Victory in ERD Challenge to Running State and Federal FMLA Concurrently As several of our clients have encountered, recently employees and their counsel have argued that a woman can choose to take her federal Family and Medical Leave Act ("FMLA") leave and her Wisconsin FMLA leave consecutively. The situation most often presents itself when a woman requests time off during pregnancy, before the birth of a child, but wants to "save" her six weeks of Wisconsin FMLA leave to use upon the birth of her child. In one case in which von Briesen & Roper represented the employer, the Wisconsin Department of Workforce Development's Equal Rights Division ("ERD") advised an employee that she could "stack" her state and federal FMLA leave in this way. In fact, the ERD found probable cause to believe there had been a violation of the Wisconsin FMLA when an employer told an employee that her state and federal FMLA pregnancy leaves would run concurrently when taken in the 16 weeks before the birth of her child. Our client stood by its position that the federal and state FMLA laws run concurrently when the leave qualifies for protection under both laws and went to a hearing on the merits.	02/26/10
Labor and Employment Law Update - February 2010 The February 2010 Labor and Employment Law Update focuses on The "Pros" and "Cons" of Social Networking for Employers and New Employment-Related Matters of Note.	02/25/10
WERC Invalidated Collective Bargaining Agreement Language that Preserved Circuit Court Review as the Appeal Procedure of Police and Fire Commission Discipline Decisions In a decision issued on December 1, 2009 involving the City of Menasha, the Wisconsin Employment Relations Commission ("WERC") held that a proposal by the City to "maintain language from the 2007–2008 Agreement which required that the appeal procedures contained in Section 62.13, Stats. be utilized by a union-represented employee who wished to challenge discipline imposed pursuant to that statutory provision" constituted a prohibited subject of bargaining and was invalid. WERC's decision in this case was very narrow and was by no means earth-shattering. WERC simply held that a municipal employer may not make a bargaining proposal that "prohibits access to arbitration" pursuant to Section 111.70(4)(mc), Stats. Of significant and notable importance, WERC did not invalidate existing collective bargaining agreement language that is present in a current collective bargaining agreement. Nor did WERC invalidate language that is agreed to by the municipal employer and Union where the parties agree to use the circuit court as the appeal choice for review of PFC discipline decisions.	12/07/09
New Regulations Prohibit Questions Regarding Family History or Other Genetic Information on Certain Health Risk Assessments On October 7, 2009, Interim Final Rules were issued to implement certain sections of the Genetic Information Nondiscrimination Act ("GINA"). These rules prohibit (i) the use of genetic information for increasing the group premiums or contribution amounts based on genetic information; (ii) requesting an individual or family member to undergo genetic testing, except in limited circumstances; or (iii) requesting genetic information in connection with enrollment or for "underwriting purposes," which includes offering benefits or rewards for completing a health risk assessment ("HRA").	10/16/09
Hold Your Horses: WERC Did Not Hold That All Internal Investigation Records Must Be Turned Over To The Union Prior To Employee Questioning During An Internal Investigation WERC recently ordered the release of the employer's internal investigation records to the Police Union for purposes of conducting a pre-disciplinary hearing in its decision in WLEA Local 2 v. University of Wisconsin System, Dec. No. 32239-B (WERC 2009). WERC found the employer had to disclose this information after the employer had already conducted its internal investigation, which included questioning of the accused officer, and after the employer decided the officer subject to the misconduct investigation should have to answer to charges against her at a pre-disciplinary hearing. WERC acknowledged that this case had nothing to do with the Union's request for information during the "initial ‘investigatory' questioning by an employer about possible misconduct." WERC even recognized that the Police Union, in its brief, acknowledged that a request for information for use at an internal investigation meeting would likely be treated differently by WERC due to different competing interests of the State and the individual or the union.	09/15/09
Wisconsin To Focus on Eliminating Worker Misclassification and Its Underground Economy A special State of Wisconsin Task Force is cracking down on Wisconsin employers who misclassify employees as independent contractors. "Worker misclassification" is the practice of employers wrongfully classifying workers as "independent contractors" when they are actually "employees" under the law. The Task Force believes that misclassification by an employer gives that employer an unlawful competitive advantage over those employers that "play by the rules." When workers are misclassified as independent contractors, the employer circumvents its wage payment and overtime obligations, as well as unemployment, worker's compensation and other withholding taxes and insurance obligations.	08/24/09
Supreme Court Holds that Restrictive Covenants Within One Agreement May Be Divisible Wisconsin courts have frequently found that if any restrictive covenant within an agreement was unlawful, the entire agreement was unenforceable. However, on July 14, 2009, in Star Direct, Inc. v. Dal Pra, the Wisconsin Supreme Court issued a decision that could increase the enforceability of restrictive covenants in Wisconsin. The Court held that separate covenants within one agreement may be divisible and separately enforceable, even if one or more of the covenants are found to be unenforceable.	07/17/09
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Our Labor and Employment Group attorneys specialize in all areas of management labor and employment issues. A significant portion of the practice focuses on prevention – making sure employers have the training, policies and contracts in place before problems arise.

Our attorneys represent employers in all industries including manufacturing, healthcare, financial institutions, schools and government entities. We are experienced in the following areas:

Collective Bargaining Negotiations

Labor Relations

Equal Employment Opportunity/Affirmative Action

Personnel Policies

Employee Evaluation, Discipline and Discharge

State and Federal Unfair Labor ...