James M. Kalny
Shareholder

Location: Green Bay
T: 920.431.2223
F: 920.431.2263
318 S. Washington Street, Suite 300
Green Bay, WI 54301

Publications: Attorney James M. Kalny


  • Wisconsin Supreme Court Makes Significant Ruling on Open Meetings Law

    July 7, 2017

    On June 29, the Wisconsin Supreme Court issued an opinion in State of Wisconsin ex rel. John Krueger v. Appleton Area School District Board of Education and Communication Arts 1 Materials Review Committee, No. 2015AP231 regarding what constitutes a governmental body for purposes of the Wisconsin Open Meetings Law. The Supreme Court reversed both the circuit and appeals courts, applying a very broad interpretation of what staff meetings may be considered meetings for purposes of the Open Meetings Law. The Facts: A parent (Krueger) in the Appleton Area School District had some concerns about the written materials used in the district’s...



  • The Trump Administration Takes its First Step in Rolling Back Obama Employment Regulations

    June 12, 2017

    On June 7, 2017, the U.S. Department of Labor (DOL) announced the withdrawal of two Obama-era guidance letters that provided direction on joint employer and independent contractor classifications (Administrator's Interpretations No. 2015-01 dated July 15, 2015, on independent contractors and No. 2016-01dated January 20, 2016, on joint employment). On January 20, 2017, Reince Priebus issued a memorandum to the heads of all federal executive departments and agencies generally instructing those officials to: refrain from forwarding any new regulations to the Federal Register; withdraw any proposed rules or guidance documents that had not been implemented; delay the final implementation of any rules that had been...



  • Employment Law in President Trump’s First 60 days

    March 31, 2017

    When President Trump was running for office he made many statements suggesting changes he intended to make which would impact employment law. Some of those assertions recognized the need to work with Congress, such as the repeal of the Affordable Care Act (ACA). The majority of his claims, such as the general promise to roll back initiatives of the Obama administration pertaining to the Fair Labor Standards Act (FLSA), gender identity accommodation, National Labor Relations Board rules on social media and other matters, are under the purview of the executive branch. The President could more directly control such topics through...



  • EEOC Releases Final ADA Wellness Program Rules and Sample Notice

    June 30, 2016

    Workplace wellness programs have been a complex and controversial topic in recent years with Equal Employment Opportunity Commission (EEOC) lawsuits, proposed rules, and now final rules. On May 17, 2016, the EEOC issued a final rule (the “Rule”) to amend the regulations and guidance implementing Title I of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs. EEOC Final Rule Requires Wellness Plans to be “Voluntary” Wellness programs commonly gather health information through voluntary health risk assessments or biometric screenings that include medical examinations. In order to comply with the ADA, according to the Rule, any workplace...



  • New Employer Worry: Expansion Of Joint Employer Under DOL Guidance

    February 3, 2016

    In January 2016 the Department of Labor (DOL) Wage and Hour Division (WHD) issued an Administrative Interpretation (AI) (No. 2016-1, 1/20/16) that would significantly expand the number of employers who would be classified as “joint employers” under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Employers are rightfully concerned over increased potential liability for violating the FLSA or MSPA. If two or more employers are considered a joint employer, they may be held jointly and severally liable for minimum wage, overtime and other violations of the FLSA and MSPA. The AI notes: “When...



  • January 31, 2016 ACA Employee Notice Deadline Looms; Cadillac Tax Delayed; Other ACA Developments

    December 23, 2015

    January 31, 2016 Deadline to Furnish Forms to Employees By January 31, 2016, many employers must furnish notices to employees in connection with the Affordable Care Act (“ACA”) information reporting requirements. Think of it as a W-2 for employer-provided health coverage. As summarized in our November 23, 2015 Client Alert, either a Form 1095-C or 1095-B must be furnished to employees, depending on the coverage type, the size of employer, and the existence of related employers. The Form will provide information about health care coverage offered (or not offered) to employees and their family members during the 2015 calendar year. February (or...



  • Circuit Court Rules That WERC Exceeded Its Rule-Making Authority

    August 12, 2015

    Just when you thought all of the Act 10 litigation had been resolved, along comes Wisconsin Association of State Prosecutors and Service Employees International Union, Local 150 v. WERC in several combined cases challenging the rule-making authority of the Wisconsin Employment Relations Commission (WERC) regarding the election process. Milwaukee County Circuit Court Judge John J. DiMotto issued an order on July 31, 2015 finding that the WERC exceeded its statutory authority under its administrative rules ERC 70 and 80 with respect to the requirement that a union file a petition for an annual recertification election. The court ruled that based...



  • Summary of Public Safety Interest Arbitration Cases, Volume 4

    July 7, 2015

    This information update summarizes public safety interest arbitration awards that have been issued since November 2014 when our third update appeared. (For prior editions, visit http://www.dkattorneys.com/publications.cfm?st_id=192.) Readers are encouraged to read the entire award for a complete understanding of each case. (See: http://www.werc.wi.gov.) I. City of Eau Claire (Firefighters), Dec. No. 34986-A, Karen J. Mawhinney, 1/12/15. Issue City Union ✔ 1.) Wages 7/1/13 2% 2% 7/1/14 2% 2% 1/1/15 -- 2% 2.) Health Insurance 1/1/14 90% 90% 1/1/15 87% 88% Determining comparables for the first time, Arbitrator Mawhinney stated: “Contrary to popular opinion, the comparable pool is not set in stone. It is only a guideline that is useful for this case, at this time.” She found that the City’s lowering...



  • "Notes" Are Not Subject to Disclosure Under the Public Records Law

    June 5, 2015

    The Wisconsin Court of Appeals ruled on June 4, 2015 that notes from an investigation by school district officials into alleged hazing and sexual abuse within its wrestling program were not records and therefore not subject to disclosure under the public records law. The Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2014 AP 1256. The Voice of Wisconsin Rapids newspaper requested all district records regarding an investigation into the district’s wrestling program. District employees conducted interviews, and retained their personal notes from those interviews. The District denied the newspaper’s request for the notes on the basis that...



  • Long-Awaited Proposed EEOC Wellness Plan Rules Released

    April 22, 2015

    After years of silence as to how the Americans with Disabilities Act (the ADA) impacts employer compliance with workplace wellness programs, the EEOC late last week issued proposed rules, and a Fact Sheet (http://www.eeoc.gov/laws/regulations/facts_nprm_wellness.cfm) on the topic. The issuance of proposed rules is a welcome development for employer-sponsors of wellness programs, particularly in light of the Chicago regional EEOC office’s initiation last fall of several lawsuits alleging that certain employer wellness program practices violated the ADA. (See our November 2014 Client Alert: Workplace Wellness Programs Under Attack). As several American business groups and members of the U.S. Senate have observed, some...



  • When a Retiree Returns to Work, WRS, ACA, and Tax Rules Impact Public Employers

    March 31, 2015

    As described in our February 23, 2015 Client Update, “Act 10 and Total Employee Compensation,” rules under the Wisconsin Retirement System (WRS) affect public employees throughout the employment life-cycle, from the initial determination of WRS eligibility through the termination of employment. An individual’s employment life-cycle is sometimes extended when he or she rejoins the workforce to provide services to a WRS employer after officially retiring. It is easy to understand how public employers can benefit from rehiring retired public employees, whether on a temporary, part-time, or longer-term basis. Retirees come prepared with a wealth of specific skills and experience without...



  • Labor & Employment Client Newsletter

    February 24, 2015

    Featured News: Act 10 and Total Employee Compensation Review School Board Policies On Releasing Student Directory Data Event: Davis & Kuelthau's 37th Annual Public Officials Program Act 10 and Total Employee Compensation How well do your employees understand their total compensation beyond their base salary? Many employers are now providing information directly to individual employees with respect to how much the employer contributes toward their health insurance benefits. An employee’s total compensation, though, includes other benefits you provide, such as contributions toward retirement benefits. If you are a public employer participating in the Wisconsin Retirement System (WRS), you may have received questions about what types...



  • Review School Board Policies On Releasing Student Directory Data

    February 23, 2015

    School Choice Wisconsin, a nonprofit organization that supports expanding educational options for parents through the use of school vouchers, recently submitted open records requests to 30 school districts seeking student “directory data.” Initially, the organization wanted students’ names, addresses, phone numbers, grade levels and school of attendance. After hearing school district and parental concerns, the organization modified its request in most cases to include only student addresses. Sec. 118.125(1)(b), Wis. Stats., defines “directory data” as “those pupil records which include the pupil’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and...



  • Act 10 and Total Employee Compensation

    February 23, 2015

    How well do your employees understand their total compensation beyond their base salary? Many employers are now providing information directly to individual employees with respect to how much the employer contributes toward their health insurance benefits. An employee’s total compensation, though, includes other benefits you provide, such as contributions toward retirement benefits. If you are a public employer participating in the Wisconsin Retirement System (WRS), you may have received questions about what types of employee benefits are available through the WRS. Act 10 As a brief background, the WRS is administered by the Department of Employee Trust Funds (ETF). State law provides...



  • Wisconsin Supreme Court Holds Reimbursement of Medicare Part B Premiums Not a Vested Right for Milwaukee County Employees

    February 12, 2015

    Wisconsin Federation of Nurses and Health Professionals, Local 5001, AFT, AFL-CIO and Association of Milwaukee County Attorneys v. Milwaukee County, 2015 WI 12. Today’s Wisconsin Supreme Court decision in Wisconsin Federation is the latest ruling in a string of opinions relevant to retiree benefits vesting cases, and the second Wisconsin Supreme Court ruling to address the matter since the enactment of Wisconsin Acts 10 and 32. Consistent with other recently-decided benefits vesting cases, the Wisconsin Federation opinion shifts the analysis away from a presumption of vesting toward a fact-specific contract-law approach, under which benefits may in some cases be changed prospectively....



  • Summary of Public Safety Interest Arbitration Cases, Volume 3

    November 25, 2014

    This information update summarizes public safety interest arbitration awards that have been issued since our update of July 2013. (See: Davis & Kuelthau “Arbitrators' Awards Arrive”, December 19, 2012, and “Arbitrators’ Awards Update”, July 18, 2013). Readers are encouraged to read the entire award for a complete understanding of each case. (Full text of the decisions are available at www.werc.wi.gov. I. Washington County (Deputy Sheriffs), Dec. No. 34039-A, Dennis P. McGilligan, 7/19/13. Issue County Union ✔ 1. Wages 1/1/12 0% 2% 1/1/13 2% -- 2. WRS (employee contribution) 2012 0% 0% 2013 2% -- 3. Duration 2 years (2012/2013) 1 year (2012) 4. Health Insurance Dollar amt. reflecting 85% No offer Arbitrator McGilligan focused on wages and Wisconsin Retirement System (WRS) to decide this...



  • Workplace Wellness Programs Under Attack

    November 19, 2014

    Within the last four months, the Equal Employment Opportunity Commission (EEOC) has filed lawsuits against two (2) Wisconsin employers and one Minnesota employer alleging that each of the employers’ workplace wellness programs were in violation of the Americans with Disabilities Act (ADA). The EEOC has been able to file such lawsuits because the language of the ADA and the language of the Affordable Care Act (ACA) are not consistent in establishing workplace wellness program requirements and such requirements have not yet been clarified by a legal or authoritative body. As such, any employer operating a workplace wellness program that imposes...



  • Student Teachers and Video Recording in the K-12 Classroom

    November 12, 2014

    As part of Educator Effectiveness, student teachers in Wisconsin must create and submit to peer review video clips of the student teacher engaged in teaching activities. The video clips will capture the student teacher interacting with K-12 students in the classrooms of Wisconsin public school districts. Such video clips are clearly pupil records for the student teachers, but depending upon the images and audio captured, the video clips may also be pupil records for the K-12 student(s). Before a Wisconsin public school district allows a student teacher to video record himself/herself in a classroom interacting with K-12 students, it is...



  • Wisconsin Supreme Court Rejects Constitutional Challenge to Domestic Partnership Law

    August 4, 2014

    On July 31, 2014, the Wisconsin Supreme Court decided Julaine K. Appling, et al. v. Scott Walker, which addressed the limited issue of whether Chapter 770 of the Wisconsin Statutes, the Domestic Partnership Law, violated Art. XIII, Sec. 13 of the Wisconsin Constitution, known as the (“Marriage Amendment”). The Marriage Amendment, added to the Wisconsin Constitution in 2006, provides that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized...



  • Changes in State Wage and Hour Laws Impact Employers

    June 25, 2014

    President Obama directed the Department of Labor in March to come up with a way to update overtime pay rules to reflect the “changing nature of the American workplace” and to make them more” in keeping with the intention of the Fair Labor Standards Act." The review is intended to focus on the current “White Collar” exemptions which exclude positions that are “executive,” “administrative,” “professional,” “outside sales” and certain “computer” professions from the requirement of paying overtime pay for work over 40 hours per week. Based upon that federal administrative scrutiny of the traditional white collar exemptions, employers would be...



  • Good Communication Required Under ADA

    May 5, 2014

    The Americans with Disabilities Act (ADA), a federal law designed to eliminate discrimination against individuals with disabilities, contains important requirements on ensuring effective communication with individuals with vision, hearing or speech disabilities. The Civil Rights Division of the Department of Justice (DOJ) recently issued guidance on the effective communication requirements. DOJ is responsible for implementing Title II (applies to programs, activities and services of public entities) and Title III (applies to public accommodations, commercial facilities and private entities that offer certain examinations and courses related to educational and occupational certification) of the ADA. Title III entities range from hotels, restaurants,...



  • Review of Overtime Exemptions May Bring Further Costs

    April 7, 2014

    While considerable public debate continues over whether the current federal minimum wage should be increased, a separate wage and hour discussion is also taking place that may have a far greater impact. On March 13, 2014, President Obama directed the Department of Labor to come up with a way to update overtime pay rules to reflect the “changing nature of the American workplace” and to make them more” in keeping with the intention of the Fair Labor Standards Act." The review is intended to focus on the current “White Collar” exemptions which exclude positions that are “executive,” “administrative,” “professional,” “outside...



  • Final ACA Regulations Provide Clarity, Allow Employers to Ease In to Compliance

    February 24, 2014

    On February 10, 2014, the Internal Revenue Service (IRS) issued final regulations that provide additional guidance and significant transition relief with respect to the “pay-or-play” rules (also called the employer shared responsibility rules) under the Affordable Care Act (ACA). The final rules retain the core structure of the prior rules, but modify deadlines and certain aspects of coverage. These modifications are intended “to ensure a gradual phase-in” and to assist affected employers in implementing pay-or-play policies and procedures. Some of the most significant transition provisions are summarized below. Pay-or-Play Penalty Refresher In order to avoid a penalty under the ACA...



  • U.S. Supreme Court Narrows Supervisor Liability Under Title VII

    July 22, 2013

    In Vance v. Ball State University, the U.S. Supreme Court recently reviewed a case in which an African-American employee claimed that her employer should be liable for racial harassment allegedly perpetrated by a co-worker because the co-worker functioned in a supervisory capacity. The Supreme Court upheld the lower court’s dismissal, finding that the co-worker was not a supervisor under Title VII of the Civil Rights Act (“Title VII”), and, therefore, the employer was not strictly liable for the co-worker’s alleged actions. In its decision, the Court narrowed the definition of “supervisor” for purposes of finding an employer vicariously liable for co-worker...



  • WERC Forwards Union Certification Election Rules to Governor ––– Walker Approves

    July 11, 2013

    On June 26, 2013, the Wisconsin Employment Relations Commission (WERC) re-initiated the annual union certification election rules and submitted them to Governor Walker for review and approval. The WERC’s emergency administrative rules were adopted pursuant to Sec. 227.24(1)1g, Stats. The approved rules will not be applicable to plaintiffs in Madison Teachers, Inc., et al. v. Scott Walker, et al., No. 11CV3774 (Dane Co.), certification granted by WI Supreme Court No. 2012AP2067, unless and until the Dane County Circuit Court’s decision is no longer in effect. For all other public employers, the WERC rules will apply once they become final. The rules...



  • Effective Immediately: New Laws Governing the Rehiring of WRS Annuitants

    July 2, 2013

    The 2013-2015 Biennial Budget Bill (Budget Bill), enacted as 2013 Wisconsin Act 20, made substantial revisions to the statutes governing Wisconsin Retirement System (WRS) annuitants who return to work for WRS participating employers after retirement. The Budget Bill was signed into law by the Governor on June 30, 2013, and published on July 1, 2013. The WRS was created, in part, to provide post-employment annuity benefits to participants who meet the requirements of Wis. Stat. § 40.23, including retirement from employment with a WRS participating employer. The statutes permit any Wisconsin public agency to participate in the WRS, but certain...



  • Interns: To Pay or Not to Pay?

    June 20, 2013

    Summer interns bring the advantage of additional staff resources — often free of compensation. However, employers should be wary of offering unpaid internships. Before proceeding with intern programs, employers should consider a recent federal court decision in which unpaid interns were re-categorized as compensated employees. Several cases have been filed in the past few years in which unpaid interns have claimed that they should have been compensated as employees under the Fair Labor Standards Act (“FLSA”). For example, the Charlie Rose Show settled a federal court claim with a group of 189 unpaid interns in December 2012. In February 2013, an...



  • Supreme Court Accepts Act 10 Case; Resolution Closer

    June 17, 2013

    On Friday, June 14, 2013, the Wisconsin Supreme Court announced that it has agreed to hear the constitutional challenges to the changes to public sector collective bargaining passed as 2011 Wisconsin Act 10. In accepting the appeal in Madison Teachers, Inc., et al. v. Walker, et. al. the Supreme Court has agreed to bypass the Court of Appeals and resolve the constitutional challenges to Act 10 once and for all. The Supreme Court goes into recess at the end of June; therefore, it is likely that the Court will not hear arguments on the case and issue a decision until...



  • FMLA: Employer Not Required To Permit Employee To Rescind Resignation And Resume FMLA Leave

    June 6, 2013

    The Sixth Circuit found that an employer did not interfere with an employee’s ability to take leave under the Family and Medical Leave Act (“FMLA”) when she attempted to rescind her resignation after returning from FMLA leave. The court found that the employee clearly communicated to her supervisor that she wanted to resign and that she made this decision without any coercion by the company. Thus, the company had no reason to interpret the employee’s statement that she would not be coming back to work as an indication that she was requesting further FMLA leave. Employee Returns to Work Without Restrictions...



  • ADA: Ability to Perform Essential Functions Should Be Measured at Time of Adverse Action, Not After Course of Treatment

    May 29, 2013

    The Seventh Circuit recently addressed an employee’s ability to perform the essential functions of a position, for purposes of determining whether the employee is “qualified” under the Americans with Disabilities Act (“ADA”). The court held that an employee’s ability to perform the essential functions of the position must be determined at the time of the adverse action, and not after employee has the benefit of any subsequent course of treatment. Attendance Is an Essential Function In Basden v. Professional Transportation, Inc., the Seventh Circuit reviewed an ADA complaint alleging wrongful termination and failure to accommodate. The Seventh Circuit held that the employee...



  • Internal Investigations: Different Standards For Avoiding Liability Versus Punitive Damages

    May 22, 2013

    In May v. Chrysler Group, LLC, the Seventh Circuit affirmed a district court’s judgment that an employer was liable for a hostile work environment claim related to ongoing harassment of an employee who was the continual target of racist, xenophobic, homophobic, and anti-Semitic graffiti, vandalism, and death threats. However, the court also vacated a $3.5 million dollar punitive damages award. Although the employer’s actions were not sufficient to halt the hostile work environment, the Seventh Circuit found that the somewhat lackluster approach taken by the company did not amount to reckless disregard of the employee’s right under Title VII of...



  • Consistently Applied Internal Investigation Procedures Defeat Race and National Origin Claims

    May 9, 2013

    The Seventh Circuit recently provided guidance as to what constitutes a legally-sufficient internal investigation procedure. In affirming the lower court’s dismissal of a race and national origin discrimination claim brought by a college teacher, the Seventh Circuit emphasized the importance of consistent, even-handed application of the internal investigation process. College Teacher Investigated for Anti-Semitic Remarks In Smiley v. Columbia College Chicago, the Seventh Circuit reviewed a race and national origin complaint filed by Suriya Smiley, a part-time instructor at Columbia College Chicago (“Columbia College”). Columbia College informed Smiley that she could no longer teach on its behalf after it investigated a complaint...



  • Reasonable Suspicion Drug Test Based on Mere “Perception” Is Not Discriminatory

    May 2, 2013

    In Berry v. Arcelormittal USA, LLC, the District Court for the Northern District of Indiana recently determined that an employer did not discriminate on the basis of race when it only required one of two employees engaged in a workplace conflict to undergo a drug test. The court found the opinion of one single supervisor to be an acceptable basis for a drug test because the written policy stated that “reasonable suspicion” could be based solely on the perception of one supervisor. Agitated Behavior Leads to a Drug Test Marcus Berry, an African-American employee, had worked periodically for Arcelormittal USA, LLC (“Arcelormittal”)...



  • ADA: Clear Job Duty Documentation and Careful Evaluation Establish That Plaintiff Is Not "Qualified"

    April 25, 2013

    The Seventh Circuit recently decided a case in which it found that the employee was not “a qualified individual with a disability” under the Americans with Disabilities Act (“ADA”) because she could not meet the lifting requirements of her position. Based on the principle that she did not qualify for ADA protection, the remainder of the plaintiff’s disability and accommodation claims were unsuccessful. Painstaking Documentation Pays Off In Majors v. General Electric Co., the Seventh Circuit reviewed the ADA claim of Renee Majors, a General Electric union employee with lifting restrictions who was denied an auditor position on two occasions because she...



  • Reasonable Accommodation Under The ADA: Court Sheds Light On Notice And Interactive Process Requirements

    April 18, 2013

    The Seventh Circuit recently issued an opinion providing some new guidance regarding the interactive process under the Americans with Disabilities Act (“ADA”). Specifically, the court emphasized that the interactive process was just that—a process and not a singular decision which could not be updated or altered. In Cloe v. City of Indianapolis, the Seventh Circuit reviewed the ADA claim of Nancie Cloe, an Unsafe Building/Nuisance Abatement Project Manager for the City of Indianapolis. During her employment, Cloe was diagnosed with multiple sclerosis (“MS”). Prior to her diagnosis, Cloe arranged for sweeps of abandoned, derelict, and unsafe properties. Cloe would walk the...



  • ADA: Employees Who Do Not Show Up Are Not Qualified for the Position

    April 15, 2013

    If an employee has an established medical condition, employers tend to be gun shy about disciplining the employee for absences, fearing that the employee may bring a complaint for failure to accommodate under the Americans with Disabilities Act ("ADA"). This fear is well-founded based on the employee protections provided by the ADA and pertinent state law. However, employers' hands are not completely tied when dealing with a chronically absent employee with a known medical condition. A recent decision by a U.S. District Court in the Fifth Circuit has held that attendance can be an essential function of a position. Therefore, an...



  • Your Disclaimers Don't Matter! The Seventh Circuit Expands the Reach of Successor Liability

    April 9, 2013

    When a company is sold in an asset sale (as opposed to a stock sale), the buyer acquires the company's assets but not necessarily its liabilities. Whether the liability is passed to the buyer is referred to as "successor liability". In Wisconsin--as in most states--a buyer must expressly or implicitly assume liabilities to be considered a successor. However, if the liability is based on a violation of certain federal labor and employment laws, the federal common law standard for successor liability will be applied. The federal standard is more favorable to employees than state law standards and generally will result...



  • When An Internal Complaint Is Unrelated To Discrimination: Balancing The Seventh Circuit And The EEOC

    March 27, 2013

    On March 21, 2013, the Seventh Circuit Court of Appeals upheld the dismissal of a complaint in which the plaintiff claimed that she was fired in retaliation based on race and sex after making an internal complaint that she was attacked by a co-worker. The Seventh Circuit issued a decision discussing what constitutes protected activity under Title VII of the Civil Rights Act ("Title VII"). When read in tandem with the EEOC's recent "fact sheet" discussing Title VII and domestic violence, it becomes clear that employers should take a deeper look at the substance of any internal complaint when considering...



  • Non-Enforcement Period Still In Effect for Insured Plan Nondiscrimination Rules

    March 20, 2013

    As most Wisconsin employers know by now, the Patient Protection and Affordable Care Act (the "ACA") introduced new nondiscrimination requirements for insured group health plans; however, many employers remain confused about the impact of these rules. The simple answer is that no formal implementation must commence until the administrative agencies charged with enforcing these rules publish guidance on the subject. This client update explores and examines the information currently available with regard to the ACA's nondiscrimination rules, the continued delay of the insured plan rules, and the implications for insured plan sponsors. Nondiscrimination Rules Under the self-insured nondiscrimination rules, self-insured...



  • NLRB Appointments Deemed Unlawful, Board Without A Quorum to Act

    January 30, 2013

    In Noel Canning v. NLRB, Dec. No. 12-1115 (D.C. Cir., 01/25/2013), the United States Court of Appeals for the District of Columbia ruled President Obama's 2012 appointments to the National Labor Relations Board ("Board") were made in violation of the Recess Appointments Clause of the United States Constitution. The invalid appointments related to three members of the five member Board. With three out of five members of the Board having been unlawfully appointed, the Board lacked a quorum and could not exercise its authority under the National Labor Relations Act. As a result, the Court determined that the decision of...



  • Federal Appeals Court Rules That Act 10 Is Constitutional

    January 21, 2013

    The United States Court of Appeals for the Seventh Circuit has ruled that 2011 Wisconsin Act 10 is constitutional in an opinion released on Friday, January 18, 2013. The Seventh Circuit's decision reviewed a decision that had been issued by the United States District Court for the Western District of Wisconsin in the spring of 2012. The District Court had concluded that the majority of Act 10 was constitutional, but also found that those portions of Act 10 that required general municipal employees' representatives to face annual recertification elections and that banned union dues deduction were unconstitutional. The Seventh Circuit concluded...



  • Arbitrators' Awards Arrive

    December 19, 2012

    Interest arbitrators' awards covering public safety employees have started to trickle in to the WERC. Public employers have struggled to balance the "two class" system of general and public safety employees that was the by-product of Acts 10 and 32. Many public employers seek to provide the same benefits to all employees. The first award, issued more than one year ago struck fear in the hearts of public employers throughout the state. In that case, the arbitrator categorically rejected the argument that the internal comparables justified requiring deputies to contribute to WRS under the county's offer. This case is summarized below: A....



  • Is Your Harassment Investigation...Harassing?

    October 1, 2012

    When conducting an internal investigation of a harassment complaint, employers typically instruct interviewees that they must keep the information discussed during the interview confidential so the employer can carry out a fair and accurate investigation. ...



  • High Court Rules Municipalities on the Hook for Costs of Public Records Requests

    July 2, 2012

    The Wisconsin Supreme Court ruled Wednesday, June 27, 2012 that public entities must bear the expense associated with redacting confidential information from documents in response to public records requests. The Supreme Court in Milwaukee Journal Sentinel v. City of Milwaukee held that the public records law provides no authority to pass on the cost of performing required redactions of records to the requestor, leaving that cost solely with the public entity. State Supreme Court Justice Roggensack and three other Justices wrote a separate opinion in which they agreed that the law as currently written does not include authority to charge...



  • The NLRB Cares Deeply About Your Social Media Policy

    June 27, 2012

    The National Labor Relations Board ("NLRB") recently issued a report that analyzes seven different social media policies to determine whether they violate workers' rights under Section 7 of the National Labor Relations Act ("NLRA"). The NLRB specifically discussed issues with respect to protection of confidential information, non-public information, "friending" co-workers, seeking permission before posting to social media sites, complaint procedures, and respectful use of social media. Why Does the NLRB Care? Section 7 of the NLRA grants most employees (not just union members) the right to discuss workplace issues, including possible formation of a union. If Section 7 is violated,...



  • Criminal Background Checks: The EEOC Changes the Landscape

    May 17, 2012

    On April 25, 2012, the U.S. Equal Opportunity Commission ("EEOC") issued new enforcement guidance regarding use of criminal background checks and arrest/conviction disclosures. The revised guidance offers in-depth analysis of the disparate impact of arrest and conviction records on racial and ethnic minorities. The enforcement guidance also provides employers with clear, albeit somewhat burdensome, rules on the use of criminal background checks and self-disclosure. Additionally, the enforcement guidance explains how employers can establish a defense to claims of disparate impact by showing that criminal background checks were job related and consistent with business necessity. Because Title VII of the Civil...



  • EEOC Raises Hurdles to Employers' Defense of Age Discrimination Claims

    April 25, 2012

    The U.S. Equal Employment Opportunity Commission (EEOC) recently issued new regulations that complicate an employer's ability to protect itself from disparate impact claims brought under the Age Discrimination in Employment Act (ADEA). Although it was already known that an employer can defend against an ADEA disparate impact suit if it made the challenged job action based on "reasonable factors other than age," the new regulations add several new requirements to proving that these factors are reasonable. The discretionary nature of these factors will make the employers' decision-making processes more complex with respect to hiring, firing, promotion and assignment. These complications...



  • WERC Issues Revised Union Election Rules

    September 21, 2011

    On September 15, 2011 the Wisconsin Employment Relations Commission (WERC) published final administrative rules regarding union elections required under 2011 Wisconsin Acts 10 and 32 after receiving Governor Walker's approval. These rules do not apply to public safety or transit employees. This chart below will help you determine when a union election will take place. If a union misses the filing deadline, it will be decertified. If a union is decertified, it will no longer be able to represent the employees for at least one year. ElectionApplicable Bargaining UnitLast Date of Union PetitionDate of ElectionRound 1State and municipal general employees...



  • Attorney General Discusses an E-mail Walking Quorum

    July 21, 2010

    In the landmark case of State ex rel Newspapers v. Showers Wis 2d 77(1987), the Wisconsin Supreme Court first warned public officials of the dangers of engaging in a “walking quorum”—a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum. Recognizing that a walking quorum may produce a predetermined outcome and thus render the subsequently held public meeting a mere formality, the court warned that any attempt to circumvent a public meeting through use of a walking...



  • Attorney General Addresses a Town Chair's "Google Group"

    July 21, 2010

    Background It is becoming increasingly common for elected officials to use electronic media such as websites or chat rooms to communicate with their constituents. While providing information or a forum to the voters is well intended, the sites and communications are likely public records, and the information exchanges may even constitute public meetings subject to the requirements of the Wisconsin Open Meetings Law. The attorney general considered some of the potential pitfalls of using the electronic media as a constituent communication forum in an informal opinion regarding whether the public is entitled to access a private “Google Group” website maintained by an...



  • Municipal Solutions - Introduction

    July 21, 2010

    The universal proliferation of electronic communication has significantly affected the public sector workplace. Most, if not all, administrative municipal employees are provided networked computers with e-mail and internet access to complete their assigned tasks. Public sector employees commonly carry work-issued cell phones or pagers, and most municipalities have websites where they publish agendas and respond to public inquiries electronically. Unfortunately, the rapid growth of electronic communication has, in some respects, outpaced the ability of the legislature and courts to keep up with definitive rules, regulations and decisions to guide employers in managing the rights and obligations created by this new...



  • WI Supreme Court Issues Landmark Decision on the Application of the Public Records Law to Employee E-mail

    July 21, 2010

    E-mail is still the most commonly used of the many new forms of electronic media and communications options. Virtually all employees have access to computers and have assigned e-mail accounts through their employment. E-mail communication, while beneficial, is not without its drawbacks. The proliferation of communications generated in this form, coupled with the unique mass archiving systems typically used to maintain such communications has created a complicated situation for public entities in relation to public records. In a case involving the Wisconsin Rapids School District, the Wisconsin Supreme Court ruled for the first time that “purely personal” e-mails of public employees...



  • U.S. Supreme Court Addresses Employee Privacy in the Context of Text Messages on Publicly-Owned Pagers

    July 21, 2010

    The Wisconsin and United States Supreme Courts have made it clear that when public sector employees check into work, they do not leave their privacy rights at the door. Searches and seizures of an employee’s private property and affects are subject to Fourth Amendment restraints. Whether an employee has a reasonable expectation of privacy has to be determined on a case by case basis taking into consideration the “operational realities” of the workplace. A typical way to address the expectation of privacy is to develop policies that instruct the employees of any limitations on their privacy. However, particularly in dealing...



  • The Perils of Social Media

    July 21, 2010

    The evolution of electronic social media presents numerous complications in regulating employee conduct which may cause problems for the public sector employer. Employers must carefully balance liability considerations with privacy issues when regulating an employee's non-work related communications on work-issued computers, cell phones or other electronic devices. It is inevitable that municipal employers will hire employees, or candidates will be elected, who use Facebook, MySpace, Twitter, Friendster, LinkedIn or some other form of social media. However, public entities need to consider the potential liability and risk due to employee activities on these sites, both on-duty and off-duty. Municipal employers face potential liability...



  • WERC Renders Decision on the Current Role of Police & Fire Commissions in Discipline Cases

    December 3, 2009

    In a decision dated December 1, 2009, the Wisconsin Employment Relations Commission (WERC) has decided that a municipal employer may no longer maintain existing language in a collective bargaining agreement which uses the procedures of § 62.13(5) for review of discipline police or fire department employees, if the union objects upon the expiration of the contract. This is the first decision from the WERC regarding the application of § 62.13(5) and bargaining since the budget law change two years ago. In City of Menasha, the WERC held that a municipal employer cannot propose contract language (or maintain existing language) which...



  • SAA Releases Analysis of Collective Bargaining Proposals

    April 9, 2009

    School Officials Are Right To Be Wary Of QEO Lobbying EffortsThe Governor’s budget proposal for 2009-11 has again proposed abolishing the Qualified Economic Offer (“QEO”) in teacher negotiations. To be sure, there’s plenty to be said about a budget that would remove the QEO limits on teacher salary increases, without reforming school financing, against the backdrop of an estimated 5.7 billion dollar state deficit, at a time when economic recession has taxpayers pressed to their limits. But while public debate is often focused on whether the QEO should stay or go, an equally compelling and perhaps more immediate issue is...



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