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.
On April 22, 2010, on the last day of the regular session for the 2009 legislative floor session, the Wisconsin Assembly passed AB-367 which prohibits employment discrimination based on credit history. This is an emerging protection in employment discrimination laws across the country with less than a handful of states enacting similar legislation. The Bill still has to pass the Senate and be signed by the Governor before it becomes law.
Sixty percent of employers now conduct credit checks on job applicants. Credit checks in hiring put job seekers in a Catch-22, in which they can’t pay their bills because they lost their jobs, but now they can’t get a job because they can’t pay their bills. Congressmen Steve Cohen (D-TN) and Luis Gutierrez (D-IL) recently introduced HR 3149, the Equal Employment for All Act, to restrict the use of credit checks in employment and put job seekers back to work. The bill will soon be heard in the House Financial Services Committee and needs the support of your elected officials. You can visit www.creditcatch22.org to learn more about the bill, and you can click on “Contact Your Legislators” to talk to your representatives in government about stopping this discriminatory practice.
On March 16, 2010, the Wisconsin State Assembly, lead by Representatives Parisi, Fields, Pasch, Grigsby, Sinicki, Turner, Roys and Kessler, and cosponsored by Senator Taylor, introduced Assembly Bill 854. Assembly Bill 854 is the Assembly version of Senate Bill 612, which would make it unlawful for an employer to ask about criminal convictions before selecting an applicant for an interview. The bill was sent to the committee on Corrections and the Courts. As I said in my post on SEnate Bill 612, This amendment is similar to the law on disability discrimination in employment, which prohibits inquiries into any disabilities until after an applicant is offered a job. So the disabilities law is a bit more protective than even this proposed amendment to WFEA on conviction record discrimination. Still, the proposed bill would be a significant step towards stopping unlawful discrimination because of a conviction record. It may also help employers hire good employees that they would not otherwise have considered. To view the history of this bill, go to http://www.legis.state.wi.us/2009/data/AB854hst.html. Talk to your representatives in the state legislature about this bill if you support it. They need to know. You can find your state representative by visiting http://www.legis.wisconsin.gov/w3asp/waml/waml.aspx.
On March 11, 2010, Senator Taylor, with Representatives Parisi, Fields, Pasch, Gribsby, Sinicki, Turner, Roys and Kessler as co-sponsors, introduced Senate Bill 612 (2009-2010) to create an amendment to the Wisconsin Fair Employment Act (WFEA). The WFEA already prohibits discrimination based on an arrest or conviction record with certain exceptions when the conviction and job are substantially related, but the current version of the Act permits employers to make inquiries of applicants about convictions. Many applicants won’t know why they did not get an interview, and many times it can be due to a conviction record even though the job and the conviction are not substantially related. This bill would prohibit employers from asking applicants about a conviction record until after the employer selects an applicant for an initial interview. The proposal was sent to the Committee on Labor, Elections and Urban Affairs, and is still a long way from becoming law, if it can survive the legislative process. This amendment is similar to the law on disability discrimination in employment, which prohibits inquiries into any disabilities until after an applicant is offered a job. So the disabilities law is a bit more protective than even this proposed amendment to WFEA on conviction record discrimination. Still, the proposed bill would be a significant step towards stopping unlawful discrimination because of a conviction record. It may also help employers hire good employees that they would not otherwise have considered. To view the history of this bill, go to http://www.legis.state.wi.us/2009/data/SB612hst.html. Talk to your representatives in the state legislature about this bill if you support it. They need to know. You can find your state representative by visiting http://www.legis.wisconsin.gov/w3asp/waml/waml.aspx.
The Seventh Circuit Court of Appeals recently decided the appeal of employees asking to be paid for time spent washing off at the end of a shift, which would sometimes cause overtime. The Seventh Circuit is the federal appellate court covering cases arising in Wisconsin and other states in the Midwest. In Musch v. Domtar Industries, Inc., 587 F.3d 857 (7th Cir. 2009), the court stated that under wage laws, an employer must “pay their employees a wage for all the ‘work’ they do.” In looking at both Federal and Wisconsin wage laws, the court said that “work” is defined as “physcial or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” In this case, the court found that time employees spent washing up at the end of a shift was not “work” under this definition. The employees worked around hazardous chemicals and showered at work after their shift. The employees apparently did not present evidence that they has known exposures to the chemicals each day, and the employer did pay for this wash time when an employee had a known exposure.
A new decision from the 7th Circuit Court of Appeals for the Federal courts illustrates the importance of information an employee must provide an employer about needed accomodations for physical or mental conditions that affect one’s ability to perform the essential functions of a job. In Ekstrand v. School District of Somerset, decided October 6, 2009, the Court of Appeals found that an employer did not have to accomodate an employee with a room with exterior windows for several months, despite her request, because she did not provide a doctor’s note or tell the employer that her doctor said that was necessary for her to minimize the effects of a seasonal affective disorder. She did eventually provide a letter from her doctor stating that the exterior windows were necessary. The court found that until that time, the school district would not be held accountable for failing to provide that form of accomodation. The court essentially said that the knowledge of the employer is dependent on what the employee tells it, when it comes to knowledge of the disability and medical needs for accomodation. Bottom line is, an employee with a physical or mental disability is best served by communicating his or her needs and providing a letter or medical note from the doctor endorsing that request. Then, the employee must continue to communicate with the employer in an effort to inform the employer of the condition and working towards finding a reasonable solution to the employee’s needs with regard to an accomodation that will permit the employee to perform the essential functions of the job. If the communication process breaks down, the party responsible for breaking the communication will be at fault.
Act 20, passed in the Wisconsin legislature in 2009, added the ability to recover non-economic and punitive damages against an employer of 15 or more employees in Wisconsin that violates the Wisconsin Fair Employment Act. The change in the law permits a victim of employment discrimination to recover monetary damages for things like emotional pain and suffering, economic losses that go beyond lost wages, and where an employer acts in reckless disregard of the law, an amount of monetary damages to punish the employer and encourage it to comply with the law in the future. The new law affects violations of the WFEA that occur on and after July 1, 2009.
Attorney Gordon Leech
Representing Individuals in Consumer and Employment Matters
Our federal congress recently took a look at how the courts have interpreted the Americans with Disabilities Act (“ADA”) to see if the courts were interpreting the law consistent with Congress’s intent. Congress said the courts were too restrictive, and it passed an amendment to the law in an attempt to open the courthouse
doors to so many individuals with disabilities that would otherwise be shut out by the courts’ restrictive reading of the law. Congress passed the ADA Amendments Act of 2008, which states among other things that the prior law was too restrictive and set too high standard in determining who should be protected:
the prior EEOC regulations defining the term ‘‘substantially limits’’ as ‘‘significantly restricted’’ set too high a standard, and that the holdings in a series
of U.S. Supreme Court and lower court decisions had failed to fulfill Congress’s expectation that the definition of disability under the ADA would be interpreted consistently with the broad interpretation of the term ‘‘handicapped’’ under section 504 of the Rehabilitation Act of 1973 and with the broad view of the ‘‘regarded as’’ prong of the definition of ‘‘disability, as first enunciated by the Supreme Court in Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987). Pursuant to the 2008 amendments, the definition of disability in this part shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA, and the determination of whether an individual has a disability should not demand extensive analysis. Statement of the Managers to Accompany S. 3406.
As an attorney that frequently represents employees in disability discrimination claims, this change in the law is a welcome relief.
Attorney Gordon Leech
Representing people with claims relating to credit reports, fraud, employment and other consumer matters.
In Wisconsin, am employer may not take an adverse action against an
employee, like terminating employment, because the employee has lawfully
used a particular product. For example, if you work for ABC Drink
Company, and you drink XYZ Soda, it may be unlawful for an employer to
fire you for drinking XYZ Soda. Like any law, there will be exceptions
to this general rule. Where I see this scenario many times is an
employee’s lawful use of a prescription drug. An employee takes a drug
test, discloses the prescription drug use, and is then fired or maybe
not hired because of the prescription drug. As long as the use of the
drug does not impose a safety threat or otherwise impact the job, then
an employer should not deny employment or terminate employment for this
lawful use of the drug. I have also seen day care centers require
employees, typically single parents, to bring their children to the
center in order to get hired and keep their job. This is also a likely
violation of this law.
Attorney Gordon Leech