Tuesday, June 29, 2010

EEOC Files Complaint Against Milwaukee Firm

The Equal Employment Opportunity Commission has filed a lawsuit against Durable Contract Services Inc., alleging it illegally fired a security guard in 2008 because she was pregnant. From the very short Milwaukee Journal Sentinel article on the suit:

The woman, who had been assigned to security at Milwaukee County's Marcia P. Coggs Human Services Center, 1220 W. Vliet St., was fired four days after telling her supervisor she was pregnant, the civil suit alleges.

The supervisor said in a brief interview Monday that the allegations are "totally untrue," then referred a reporter to an attorney, who could not be reached.

Supreme Court Grants Cert in Associational Retaliation Case

Before the Supreme Court of the United States went on summer break it announced that it has granted cert in Thompson v. North American Stainless, a case out of the Sixth Circuit on the issue of associational retaliation. The issues that were presented in the cert petition were:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

Should be an interesting one!

Weekly Summary of NLRB Cases

For the week of June 21-25, 2010.

Monday, June 28, 2010

Rockwell Automation, Union Agree to Layoff Deal

Local 1111 of the United Electrical, Radio & Machine Workers of America and Rockwell Automation have reached an agreement yesterday to pay full pension and medical benefits to about 140 union members who will face layoff beginning August 1, 2010 when Rockwell will begin to outsource all remaining service and maintenance work.

From the Milwaukee Journal Sentinel article on the news:

Among the employees affected are cafeteria workers, electricians, model makers and maintenance workers who serviced machines and the building and grounds at the company's huge plant on S. 2nd St.

The company's decision to contract with outside vendors and Sunday's vote by Local 1111 effectively shuts down a union local that has represented workers at Allen-Bradley since 1937, said local president Robert Granum.

About two-thirds of the affected workers are between 55 and 60 and are eligible to retire in the next 18 months. In addition to guarantees that they will receive their full pension, workers will receive health and dental insurance and supplemental income from Rockwell from Aug. 1 until their retirement dates. They will also receive a prorated portion of next year's vacation pay as well as any remaining vacation pay from this year.

"I think in today's economy it's a good agreement," Granum said Sunday. "I think that as you see what goes on with teachers getting laid off, Harley being threatened, I think this is a good agreement."

Rockwell Automation spokesman John Bernaden said all the jobs performed by Local 1111 will stay in Milwaukee because the company will hire outside contractors to perform the work.

Seventh Circuit Upholds Plaintiff's Title VII Victory

The Court of Appeals for the Seventh Circuit affirmed a judgment awarded to a housekeeper who sued her former employer for retaliation after she complained about lewd comments and acts made to her by residents at a site she was responsible for cleaning. A discussion between the plaintiff and the employer ensued regarding the sexually harassing behavior of the residents' which led to the plaintiff leaving the workplace upset. The employer, in turn, terminated the employee claiming that she "walked off the job." The issue went to a jury which believed the plaintiff's version of events.

In affirming the lower court's decision, the Seventh Circuit held:

1. That it was unnecessary for the employee to establish the employer's liability for harassment in order to prove a claim of retaliation.

2. "The case came down to a choice between trusting Zeller or Pickett. If the jury favored Zeller's version of the events, it would have found that Pickett walked out on her job in violation of written policy after an entirely neutral conversation with her boss. As such, Sheridan would not be liable under Title VII because it fired the appellee for breaking the rules, not for protected expression. The trier of fact here chose to go the other way, but the this choice too was supported by the weight of the evidence. The jurors were entitled to believe Pickett's testimony."

3. "[T]he statement [in closing argument] 'you've got to send some message to this employer that they shouldn't do this kind of thing again'" was "not prejudicial; Title VII, a statute designed to prevent retaliatory firings, allows plaintiffs to recover damages precisely to deter employers from repeating infractions in the future."

4. "Sheridan's position that Pickett could not have established emotional distress without corroborating evidence from a third party finds no support in our precedent. . . . Pickett testified that she was very upset by how Sheridan treated her, felt embarrassed talking to her children, and nearly became homeless as a result of her discharge. This evidence is enough to support a jury award of $15,000, which is well within the $200,000 cap set out in 42 U.S.C. § 1981a(b)(3)(C) and the benchmarks set out by other improper termination cases."

5. Affirming the punitive damage award, the panel rejects an argument that the court "extend Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), to mandate a one-to-one ratio between compensatory and punitive damages in this case. The logic of Baker does not apply to this Title VII case."

The case is Pickett v. Sheridan Health Care Center, No. 09-3028 (7th Cir. June 25, 2010). Hat tip: Daily Developments in EEO Law.

Thursday, June 24, 2010

Harley Davidson Tells Union Needs Production Costs Cuts or Jobs Could be Lost

Yesterday management of Harley Davidson met with employees and Steelworkers Local 2-209 at the Milwaukee powertrain operations to discuss the need for a reduction in production costs. From the Milwaukee Journal Sentinel article:

Employees have been told the company wants to slash $53 million a year in costs from Wisconsin operations.

Decisions will be made this fall, employees were told.

"(CEO) Keith Wandell was brutally honest. He told people that they were looking at another place, but that their intention is to stay here," said Mike Masik, president of Steelworkers Local 2-209 in Milwaukee.

Harley-Davidson officials want to begin negotiations with the Steelworkers for their next contract that goes into effect in 2012.

Also Wednesday, Harley-Davidson said it was cutting 200 more jobs at its York, Pa., factory as part of previously announced job reductions.

Wednesday, June 23, 2010

Data Released by Wisconsin Department of Workforce Development Shows Four County Area Lost 800 Jobs in May

In a bleak data report released earlier today by the Wisconsin Department of Workforce Development, it was revealed that a four-county region that includes Milwaukee and Waukesha Counties lost 800 jobs last month on a seasonally adjusted basis. From the Milwaukee Journal Sentinel article on the data report:

Of the state's 12 metropolitan areas tracked by the agency, only one other lost jobs after adjustments to smooth out seasonal fluctuations such as the start of school vacations and warm weather: Appleton lost 100 jobs under the agency's data.

The release of the data comes a week after the agency's unemployment report for the full state, which showed that Wisconsin lost 7,900 private-sector jobs on a seasonally adjusted basis and only managed to offset the declines with a surge of new hires by federal, state and local government agencies.

On Wednesday, the non-profit Center on Wisconsin Strategy included a somber outlook as it released its monthly analysis of the state's labor trends:

"The stagnation in job growth between April and May 2010 interrupts the year's upward trend, but the longer-term economic picture is more worrisome still. Wisconsin has lost 153,000 jobs since the recession's start in December 2007, and the state's job base is still 5.3 percent below its prerecession level," the Center wrote.

Weekly Summary of NLRB Cases

For the week of June 14-18, 2010, click here.

Tuesday, June 22, 2010

Gays to Receive FMLA Coverage Under New Federal Interpretations

On Wednesday the Department of Labor will announce that it has rethought the Family and Medical Leave Act and has concluded that, under the law, a gay federal employee may take leave to care for a child with a gay partner. Here is the Washington Post article on the major announcement.

UPDATE: The DOL just released its interpretation regarding this and is available here.

Senate Confirms Two Members to NLRB Board

Two President Obama nominees, Mark Gaston Pearce and Brian Hayes, were confirmed by unanimous consent by the Senate earlier today. When both men join the Board, it will be the first time the Board has been at full strength since December 2007.

Here is the press release from the NLRB.

NLRB Conducts Elections at 11 Texas Hospitals, 9 Favored Unionization

This past spring over a 5-week period the National Labor Relations Board's Fort Worth regional office conducted 11 secret ballot elections at Texas hospitals involving two unions: the National Nurses Organizing Committee-Texas, an affiliate of National Nurses United, and the Service Employees International Union Healthcare Texas. From the NLRB press release:

Employees voted in favor of unionization in nine of the elections, representing a total of 1,769 registered nurses and 1,477 service employees, and against unionization in one. The remaining election remains unresolved and will be rerun on June 28.

Monday, June 21, 2010

Wisconsin Court of Appeals Upholds Milwaukee Police Department Employee's Termination

A former Milwaukee Police Department employee, Mark Vasquez, and the Milwaukee Police Association appealed a decision of the circuit court and the Milwaukee City Board of Fire and Police Commissioners finding that Vasquez had violated Milwaukee Police Department Rule 4, § 2/040.00, which states that all employees of the police department "shall reside in the [C]ity of Milwaukee except when on vacation, or as otherwise provided in these rules." The Wisconsin Court of Appeals affirmed.

The facts are rather interesting. Vasquez and his family bought some property in Mukwonago and built a home on it which his wife and children then moved into. However, Vasquez rented an apartment in Milwaukee which he claims he slept at five times per week, which the Court ultimately concluded was done for purposes of skirting around the residency rule.

He kept his car insured at the Milwaukee apartment, used the Milwaukee address
for his voter's registration and fishing license, and received his mail there.
He testified that all of his personal belongings were kept at the Milwaukee
apartment. However, Vasquez also testified that upon his retirement from the
police department he intends to join his wife and family in Mukwonago if they
still reside there.

The Board found, based on evidence admitted at the
hearing, that Vasquez maintained the following routine during a "'normal'" work

4 out of 5 nights prior to work days he slept at the Milwaukee
apartment and went to work the next morning from that location. He left work
each day and either stopped briefly at the Milwaukee apartment or drove directly
to Mukwonago where he spent several hours with his wife and children. He then
drove back to Milwaukee to sleep and repeat the routine once again. On his final
work day of the week, Vasquez would normally leave the Milwaukee apartment that
morning to go to work and not return to the Milwaukee apartment until the night
after his next work day, an absence of more than 3 ½ days.
Apparently there are eight factors considered in determining actual residency for purposes of the Police Department rule and the Court of Appeals upheld the lower court's decision finding that Vasquez's residence was indeed the Mukwonago residence and struck down Vasquez's other arguments regarding his use of "free time," the definition of "residency" and that the MPD could have disciplined him other than discharge.

Here is the full decision.

Thursday, June 17, 2010

Supreme Court Rules NLRB Lacked Authority to Issue Decisions with Two-Member Board

Earlier yesterday the Supreme Court of the United States issued its opinion (5-4) in New Process Steel, LP v. NLRB holding that the National Labor Relations Board was not authorized to issue decisions during a 27-month period when three of its five seats were vacant. Justice Stevens authored the opinion and wrote:

“We are not insensitive to the Board’s understandable desire to keep its doors open despite vacancies. Nor are we unaware of the costs that delay imposes on the litigants. If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect rather than be swept aside in the face of admittedly difficult circumstances.”
The Board operated with only two members from January 2008 to late March 2010 when President Obama finally recess-appointed two additional members. The Board operated with only two members after it went to two members during President George W. Bush's tenure and Congress dilligently blocked Bush from recess-appointing his own members. So, the two-member Board issued hundreds of decisions during that period and several losing parties sought review in federal court arguing that the two-member Board lacked authority to issue those decisions. The Court of Appeals of various circuits split on the issue so, as is the case whenever the circuits split, the SCOTUS stepped in to settle the matter.

Here is the NLRB's Press Release on the decision.

Wednesday, June 16, 2010

Department of Labor to Issue Regulations to Help Employees Know Their Wage and Hour Rights...and they define "clothes"

The Department of Labor's Wage and Hour Division (WHD) recently announced that intends to issue regulations requiring employers to provide workers with information about their rights to minimum wage and overtime pay. And, for employees exempt from overtime, the DOL’s regulations would require employers to perform an exemption analysis that would have to be disclosed to the worker, retained, and provided to any enforcement agent of the DOL’s Wage and Hour Division. For more, read here.


Also, the Department of Labor has issued an a new Administrator Interpretation pertaining to Section 3(o) of the Fair Labor Standards Act, 29 U.S.C. § 203(o), and the definition of “clothes.” § 203(o) states that time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to “the express terms or by custom or practice” under a collective bargaining agreement. However, this new Administrator Interpretation holds that the § 203(o) exemption does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job. In other words, if part of an employee's uniform is protective materials like a helmet, smock, plastic apron, arm guard, belly guard, plastic arm sleeve, then they are not considered "clothes" for purposes of compensable time issues.

With respect to the changing of clothes, the Administrator's Interpretation states that clothes changing covered by § 203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable.

Wisconsin Court of Appeals Holds At-Will Doctrine Does Not Protect Employee from Termination Over Unearned Wages

In the state of Wisconsin, unless provided for otherwise, employees are at-will, meaning "employees are terminable at will, for any reason, without cause and with no judicial remedy." However, there is an exception to this doctrine known as "wrongful termination." Wrongful termination occurs when an employer has terminated an employee in violation of some recognized state policy. So, for example, in Wandry v. Bull’s Eye Credit Union, 129 Wis. 2d 37, 384 N.W.2d 325 (1986), a credit union cashier was terminated after she cashed a customer’s stolen check and refused to reimburse the credit union. The cashier sued the credit union asserting the union violated WIS. STAT. § 103.455, which she asserted was an expression of Wisconsin public policy. The cashier won.

The Wisconsin Court of Appeals in Farady-Sultze v. Aurora Medical Center of Oshkosh, Inc. did not favor the employee this time. In this case, the employee was terminated by Aurora after they discovered they had overpaid her during a four-month period. The employee was working between two Aurora locations and then ceased to work at one location but continued to receive paychecks, via direct deposit, from one location due to oversight but neglected to inform Aurora that she was still receiving paychecks. The employee claimed she did not know she was receiving the overpayments but that did not matter, according to the Court of Appeals, because they were not earned wages.

Farady-Sultze also claimed that Aurora intentionally inflicted emotional distress and defamed her because it is Aurora’s policy to disclose the reason for termination to potential employers, but those claims did not stand up either. The Court of Appeals, on the issue of intentional infliction of emotional distress, held that the claim is barred by the exclusivity provision of the Worker’s Compensation Act. On the defamation claim, the Court held that, though it is Aurora's policy to affirmatively disclose to potential employers the reason for termination, there is no evidence that it has or may occur.

Here is the State Bar of Wisconsin's short write up on the decision.

Tuesday, June 15, 2010

Jackson Lewis Expands Into Milwaukee

From "The National Law Journal" (registration required) (here is the release from Jackson Lewis):

The firm has opened an office in Milwaukee — its 46th in the country and its
13th since 2008.

The firm recruited one partner and two associates from
Constangy, Brooks & Smith, a labor and employment firm based in Atlanta with
more than 100 attorneys and 22 offices.

Partner Charles Pautsch will
head Jackson Lewis' Milwaukee location. The firm already has a heavy presence in
the Midwest, with offices in Chicago, Minneapolis, Detroit, Cleveland,
Indianapolis, Cincinnati and Omaha, Neb.

"We wanted to expand into
Milwaukee for a while, and we believe we have finally found the right attorneys
to do so in Chuck and his team," Managing Partner Patrick Vaccaro said in a
prepared statement. "His many years of experience in labor and employment law,
as well as workplace preventative practices, perfectly complement our core

Pautsch has wide experience negotiating collective
bargaining agreements with unions. He has advised employers regarding union
organizing campaigns and served as labor counsel to large retail and health care
companies. Associates Lisa Baiocchi and Brian Nuedling join him in the new

Monday, June 14, 2010

Social Networking Websites and Employment Litigation: Could be a Matter of Facebook Privacy Settings

A recent federal district court decision out of California (Crispin vs. Christian Audigier, Inc., et. al., Case No. CV 09-09509 MMM (JEMx)), reveals that access to an employee's or former employee's social networking site such as Facebook or MySpace depends upon the employee’s privacy settings and, if private, the employee’s consent, even if the subject-matter of the posts is relevant to pending litigation and responsive to an otherwise valid subpoena.

The Stored Communications Act is what courts have been citing to protect employee's web content from employers without their express consent, even where management had gained access to such websites through other employees who were approved to visit the site. Indeed, even a subpoena won't help an employer in some cases where the employee has set their privacy settings to protect content from unauthorized viewers, ruled the California court.

So, without consent and without liberal privacy settings, employers face an uphill battle getting to that incriminating evidence on social networking websites.

Friday, June 11, 2010

NLRB Mobile

For those of us with smartphones, the National Labor Relations Board has launched a "web-based mobile application that delivers recent cases, decisions, news, updates, case search and other information about the NLRB to web-enabled devices." Click here for the official news release.

Thursday, June 10, 2010


Hello readers!

I wanted to introduce myself and speak a little on what the focus of this blawg. I am an attorney here in Milwaukee with the Seifert Law Center and specialize in the area of labor and employment law. I used to be an avid blogger so I thought the idea of a blawg devoted to labor and employment issues in Wisconsin was a natural step for me. There aren't many changes or developments to labor and employment law at the state level so I will also write about issues at the national level as well and occasionally write short blurbs about substantive labor and employment law.

With that, I welcome input and article submissions and recommendations and hope I can be both entertaining and informative!