Wisconsin Legislature Introduces Bill to Hamstring Employees with Non-Compete Agreements in 2015 Assembly Bill 91

Another fast-track bill aimed at limiting employee rights in Wisconsin with a proposal to overhaul Wisconsin’s law on non-compete agreements in employment. More to come, but this bill, if passed, will significantly rewrite the law to permit far greater restrictions and enforcement of unreasonable restrictions on employees following the termination of employment whether for a good reason, bad reason or for no reason at all.

On March 12, 2015, the bill was first introduced and read then immediately referred to the Committee on Labor. The following Representatives introduced the bill: Rohrkaste, Knoll, Gannon and Murphy. Senator Farrow co-sponsored the bill.

You can follow AB91 and read the text of the bill here:

2015 Assembly Bill 91

You can follow SB69 and read the text of the bill here:

2015 Senate Bill 69

More to come on this bill in subsequent posts.

Home Care Workers Can Now Get Minimum Wage & Overtime Pay Protections

The U.S. Department of Labor’s Wage and Hour Division issued a final rule on September 17, 2013, that extends the minimum wage and overtime pay protections to direct home care worker’s that provide essential home care assistance to elderly and people with illnesses, injuries or disabilities. The change in the law will be effective on January 1, 2015. This law will help home health aides, personal care aides and certified nursing assistants that previously did not get the benefit of minimum wages or overtime pay.

The Department of Labor has more information on the new rule at www.dol.gov/whd/homecare.

Wisconsin Workers Will Find it Harder to Get and Keep Unemployment Benefits in 2013

Wisconsin’s Joint Finance Committee recently approved a modification to the state budget bill, 2013 Assembly Bill 40, for 2013-2015 that substantially curtails unemployment benefits to Wisconsin workers. The modification broadens the definition of misconduct for the purpose of disqualifying workers for unemployment benefits. Since 1941, misconduct was defined as conduct that shows a willful and substantial disregard of the employer’s interests or is not within the standards of behavior employers have a right to expect of all employees. The new definition redefines misconduct as “substantial fault.” Substantial fault would include acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements of the employee’s employer. Other changes to the bill would eliminate many of the existing circumstances where an employee that must quit a position can recover benefits and lengthens the disqualification periods that workers must satisfy before becoming eligible for benefits again. This is a significant shift towards disqualifying more workers from benefits for longer periods.

The legislature was also busy with a separate bill recently passed, Assembly Bill 219/Senate Bill 200, which imposes further requirements on unemployment recipients and additional bases to disqualify unemployed workers.

These changes come at a difficult time for unemployed workers in Wisconsin. The state fell to 44th in the nation in job creation in March according to the Bureau of Labor Statistics and 49th in economic outlook according to the Federal Reserve Bank of Philadelphia.

Getting Fired for Taking Time Off to Vote in Wisconsin

Can I take time off from work at my job to vote in Wisconsin without getting fired? Do you know the answer to that question? Take a look at our article, Time to Vote, Your Job and Your Rights in Wisconsin, on our website at http://www.celcwi.com/wisconsin_law_permitting_employees_time_vote.html, principally authored by Wyatt D. Dittburner, to learn more.

Wyatt discusses why employees in Wisconsin can take up to 3 successive hours off of work to vote without fear of being fired if the employee provides the employer notice before Election Day and goes at a time set by the employer. If the employer refuses to permit someone to take time off to vote or disciplines someone for taking time off to vote, like firing them, the affected employee may be entitled to bring a claim against the employer for harms that result.

By Gordon Leech

Misrepresentations in the Employment Relationship—By the Employer

Did you know that Wisconsin law prohibits an employer and anyone acting on its behalf from making misrepresentations to an employee or prospective employee with the intent or for the purpose of inducing the public to enter into any contract or other obligation relating to the terms of employment?
Seldom used for this purpose, but Wisconsin Statutes 100.18, part of Wisconsin’s Marketing and Trade Practices protections, prohibits such misrepresentations in many consumer transactions and the employment context. If someone suffers pecuniary loss–generally a financial loss—he or she can a claim that can be enforced in the civil courts of Wisconsin for that loss plus the costs of the action and a reasonable attorney’s fee. If there was a prior injunction in place as to the offending conduct, then the injured consumer may recover twice his or her pecuniary loss.
Wisconsin Statues 103.43 has similar prohibitions specific to misrepresentations made to induce someone to leave one job for another, but typically applies in manual labor settings.
This law, if applied in the employment context, could cover false statements of wages, salary and other employment compensation or benefits. It could also cover situations where the employer promises a position without ever intending to actually hire the consumer. These inquiries, and whether the law would provide any remedy, are very fact specific to each circumstance.

Employer Use of Credit Reports in Hiring Under Review by States

The Wall Street Journal reports today, October 21, 2010, that the use of credit reports or credit histories of job applicants, "a common practice among employers– is coming under fire." Employer Credit Checks on Job Seekers Draw Scrutiny, by Sarah Murray, WSJ_Article_Link. Employers claim that the use of credit reports in hiring is necessary to "evaluate candidates and protect against fraud." One of the underlying concerns in the use of credit reports for job applicants, the Journal reports, "is that poor credit could become a barrier to landing a job." Another concern is that the use of credit reports has the potential for discriminatory impact on hiring such that the Equal Employment Opportunity Commission held a hearing on October 20, 2010, to listen to testimony from advocates on both sides of this issue. Chi Chi Wu, counsel for the National Consumer Law Center, testified that the practice "is both harmful and unfair to American workers."

Although proponents of using credit reports for employment contend that these reports "are an important screening tool for employers intend to be used sparingly," the Journal reports that a study conducted by the Society for Human Resource Management "showed 60% of employers used credit checks to that job candidates. Of those, 13% use them for all candidates."

My own comments on the issue raised in this article is that whether or not you think credit history should be used for evaluating job applicants, it is important for all of us to ensure our credit reports are accurate. Inaccurate, negative information on credit reports can impact you in so many ways, we should all take advantage of the federal law that requires national consumer reporting agencies such as Equifax, Experian and Trans Union to provide a consumer his or her own credit report upon request for free. We are all entitled to this free report from each agency once in every 12 month period. You can order your free report for the website established by order of the Federal Trade Commission act www.annualcreditreport.com.

I would also note that in the 2009-2010 legislative session for Wisconsin, a bill was proposed to prohibit discrimination in employment based on one’s credit history with limited exceptions for certain types of jobs. Unfortunately, the bill never made it to the legislative floor. Hopefully, the building reintroduced in the 2010-2011 session.

Employer Use of Credit Reports in Hiring Under Review by States

The Wall Street Journal reports today, October 21, 2010, that the use of credit reports or credit histories of job applicants, "a common practice among employers– is coming under fire." Employer Credit Checks on Job Seekers Draw Scrutiny, by Sarah Murray, WSJ_Article_Link. Employers claim that the use of credit reports in hiring is necessary to "evaluate candidates and protect against fraud." One of the underlying concerns in the use of credit reports for job applicants, the Journal reports, "is that poor credit could become a barrier to landing a job." Another concern is that the use of credit reports has the potential for discriminatory impact on hiring such that the Equal Employment Opportunity Commission held a hearing on October 20, 2010, to listen to testimony from advocates on both sides of this issue. Chi Chi Wu, counsel for the National Consumer Law Center, testified that the practice "is both harmful and unfair to American workers."

Although proponents of using credit reports for employment contend that these reports "are an important screening tool for employers intend to be used sparingly," the Journal reports that a study conducted by the Society for Human Resource Management "showed 60% of employers used credit checks to that job candidates. Of those, 13% use them for all candidates."

My own comments on the issue raised in this article is that whether or not you think credit history should be used for evaluating job applicants, it is important for all of us to ensure our credit reports are accurate. Inaccurate, negative information on credit reports can impact you in so many ways, we should all take advantage of the federal law that requires national consumer reporting agencies such as Equifax, Experian and Trans Union to provide a consumer his or her own credit report upon request for free. We are all entitled to this free report from each agency once in every 12 month period. You can order your free report for the website established by order of the Federal Trade Commission act www.annualcreditreport.com.

I would also note that in the 2009-2010 legislative session for Wisconsin, a bill was proposed to prohibit discrimination in employment based on one’s credit history with limited exceptions for certain types of jobs. Unfortunately, the bill never made it to the legislative floor. Hopefully, the building reintroduced in the 2010-2011 session.

Questions to Ask When An Employer Fires or Terminates an Employee or Rejects an Applicant based on a Background Check

Here is what I typically look for in Background Investigation – Employment cases where an employer terminates an employee or refuses to consider or hire an applicant for employment based on a background check or credit report. The Fair Credit Reporting Act, a Federal law, has certain requirements that an employer and consumer reporting agency must satisfy if a consumer report of any type is used in the employment setting to take any type of adverse action against an employee or applicant.

  • Did the employer provide a disclosure of its intent to get a background/consumer/credit report prior to doing so?
  • Did the disclosure document consist only of the disclosure, with the exception of also providing for the signature on an authorization by the client (no releases, drug test waivers, indemnity provisions, etc., included with the disclosure/authorization)?
  • Did the employer get the client’s written authorization to obtain a background/consumer/credit report?
  • Did the employer obtain a report from a source that charged a fee or for other compensation of some form?
  • If the employer took an adverse action based in whole or in part on the report, did it provide advance notice of at least 5 days of its intent to take an adverse action and, with the advance notice, provide the client with a copy of the report and FTC summary of rights under the FCRA?
  • If the report included public record information, did the reporting agency send the client a letter with a copy of the report, summary of rights and the name and date of the employer to whom it sent the report?
  • What damages are proximately caused by any of the above requirements?
  • Whether a consumer report was used may require separate analysis depending on the circumstances. The definition of a consumer report is pretty broad though.

The standards of liability are negligence or willful. Willful includes reckless disregard of someone’s rights.

The act permits recovery of actual damages which includes any economic loss and emotional distress according to the standard in your jurisdiction. If there are no actual damages, the act still provides for a court to award statutory damages between $100-$1000 if the violation was willful. If a willful violation exists, punitive damages are also available. If you prove either a negligent or a willful violation, the act provides for recovery of attorney’s fees and litigation expenses.

Gordon Leech Testifies to Wisconsin Senate on Conviction Record Discrimination

On April 8, 2010, Gordon Leech testified on behalf of the Individual Rights and Responsibilities Committee of the Wisconsin Bar, the Wisconsin Employment Lawyers Association and for the thousands of Wisconsin citizens that are subject to unfair and unlawful discrimination in the hiring process because they have to disclose the existence and nature of any prior convictions when applying for employment. The Senate Committee on Labor, Elections and Urban Affairs held a hearing to consider Senate Bill SB-612, which if passed into law, would prohibit employers in Wisconsin from asking about convictions prior to selecting a job applicant for interview. Unfortunately, the 2009 session of the Wisconsin legislature is coming to a close, so the prospect of this bill passing into law this session is doubtful.

How An Employer Finds Conviction Records

Many employers are now obtaining and using background reports or investigations in the hiring process. These reports typcially contain information obtained from public records which includes criminal arrest and conviction records. If an employer obtains these reports without a proper disclosure of its intent to use such a report or does not obtain the prior written authorization of the consumer or employee to get the rep0rt, the employer may have violated that person’s rights under the Fair Credit Reporting Act, a Federal law. In Wisconsin, the law protects against arrest and conviction record discrimination in employment.