President Obama Signs USERRA Amendments into Law Oct 13, 2010

According to the White House, the President signed H.R. 3219, the Veterans’ Benefits Act of 2010, on October 13, 2010. The law amends the USERRA, making changes in several veterans’ affairs programs and benefits including: (1) insurance; (2) disability compensation and pension; (3) education, employment, and small business; (4) housing and homeless veterans’ programs; (5) memorial affairs; (6) civil relief issues; and (7) construction. The "employment" benefits are the USERRA amendments.

Union’s Duty of Fair Representation in Wisconsin

The Wisconsin Court of Appeals, one step below the highest level appellate court in Wisconsin, clarified a Union’s liability for claims of violations of its duty of fair representation on August 24, 2010. In the case of Service Employees International Union Local No. 150 v. Wisconsin Employment Relations Commission, Appeal No. 2009AP1524, the appellate court reversed the findings below that SEI violated its duty of fair representation of Karen Bishop, a Milwaukee Public Schools employee and member of the bargaining unit. The Court states that a union violates its duty of fair representation “only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” SEIU Local No. 150 at para. 20, citing Vaca, 386 U.S. at 190. Merely rejecting a meritorious claim is not enough. The union’s action must be arbitrary or taken in bad faith. SEIU Local No. 150, at para. 20, citing Mahnke, 66 Wis. 2d at 531.

The issue in SEIU Local 150 related to the “arbitrary” prong of the duty of fair representation when the union did not tell Bishop that it was not going to pursue an arbitration of her grievance when she was considering a settlement offer which she subsequently rejected. Whether something is “arbitrary” is tested under an objective standard (not the actual state of mind of the union actors); while “bad faith” is tested under a subjective standard (the state of mind of the union’s actors). SEIU Local No. 150, at para. 21. In this case, it was an omission-failing to do something-that Bishop claimed violated her rights. The test for arbitrariness in omissions is that the failure to act must be “so egregious, so far short of minimum standards of fairness to the employee and so unrelated to legitimate union interests as to be arbitrary.” SEIU Local No. 150, para. 21.

Ultimately, the Wisconsin Court of Appeals overturned Bishop’s win below, finding that although SEIU failed in certain respects with regard to its duties to Bishop and these failures caused delays in the process, none of these deficiencies actually prejudiced Bishop. SEIU Local No. 150, para. 48. In other words, SEIU made mistakes, but they did not cause the harm that Bishop sought to remedy—not taking a particular offer.

The Court also rejected a “totality of the circumstances” legal standard that WERC used to find a violation. WERC found that none of the deficiencies were alone enough to find arbitrary conduct under the law, but that taken together, the arbitrary standard was satisfied. The Court said this standard must be rejected because it provides no guidance to unions in evaluating their duties of fair representation because on one hand, WERC says a particular act or omission is not arbitrary, but then if combined with other non-arbitrary acts, these may be arbitrary at some point. SEIU Local No. 150, para. 54-55.

Forced Arbitration Case Before U.S. Supreme Court

On April 26, 2010, the U.S. Supreme Court heard argument in Rent-A-Center v. Jackson, a case that the employee’s trial lawyers say “poses significant questions about the scope and meaning of the Federal Arbitration Act (“FAA”), the relationship between courts and arbitration, and the basic ability of consumers and employees to gain access to courts.” This comes from Matt Wessler’s post in the blog entry of the Public Justice website, One of the most important decision the court will likely address is who gets to decide whether terms of an arbitration agreement that is forced on the employee (take it or no job) is unconscionable—a court of law or the arbitration panel.

From the perspective of the employee, one should keep in mind that the arbitration panel has a financial interest in keeping the arbitration before it because doing so generates fees for the arbitration entity and its arbitrators. If employees are faced with take-it-or-leave-it forced arbitration agreements in their jobs, and these unilaterally imposed agreements remove the issue of whether the terms can, in good conscious, be enforced from the public scrutiny that is found in our court system and relegates these decisions to the private, closed door, lack of public access decisions of private arbitration panels, employees will be forced to refuse employment on these terms or suffer yet another blow to their civil rights in employment.

Can An Employer Take a Raise Back?

In Wisconsin, the employment relationship is at-will. The employer and employee determine the terms and conditions of employment and, absent a promise of employment for a certain period of time, the relationship and its terms can end or change at anytime. Because of the at-will relationship, an employer may take a raise back without violating the law. What it may not do is to take pay back for work already performed at the rate under the pay raise. It’s a matter of expectations. Where an employee works for an agreed upon wage, even if it was the result of an unexpected pay raise, the employee is entitled to get paid at that rate. Once the work is performed, the employer may not modify the rate of pay for that work already performed. Taking pay back or failing to pay the wage at the rate agreed upon when the work was performed will violate the employee’s contractual rights and state wage laws. Deducting future paychecks for any such retroactive reduction in the wage rate also violates Wisconsin law.

Employer’s Demand for Doctor’s Excuses Violates Family Medical Leave Act

An employer’s demand of an employee to provide a doctor’s medical excuse for every time the employee was absent due to a serious health condition for which the employee already provided medical certification under the Family Medical Leave Act violated that employee’s rights because it was an act that would discourage one from taking FMLA leave. The U.S. District Court for the Northern District of Illinois came to this decision on January 6, 2010, in the case of Jackson v. Jernberg Industries, Inc. This decision affirms that employees taking FMLA qualifying leave on an intermitant basis (not a consecutive block of time) generally cannot be required to go to the doctor everytime the employee needs to take a day off work because of the limiting effects of the serious health condition just to get a doctor’s excuse so long as the employee has provided medical certification of the need for FMLA leave on an intermitant basis. The court noted that an exception may apply where there is evidence that an employee may be abusing FMLA leave, but that was not an issue in this case.

Wisconsin Employees’ Right to Review Their Personnel File

In Wisconsin, employees have a right to review their personnel files two times per calendar year under Wisconsin Statutes 103.13. This law similarly permits even former employees and applicants to inspect their personnel records. The law specifies that the employer must permit the employee to inspect “any personnel documents which are used or which have been used in determining that employees qualifications for employment, promotion, transfer, additional compensation, termination or other disciplinary action, and medical records, except as provided in subs. (5) and (6) ….” An employee may request all or any part of his or her records. An employee also has the right to inspect his or her medical records held by the employer. There are 7 specific categorical exceptions to this right–these exemptions are for records relating to: investigation of criminal offense by that employee; letters of reference; test documents; staff management planning documents; private information of another person; records relevant to a pending claim between the subject and the employer which may be discovered in a judicial proceeding; if the employer does not maintain any personnel records). The employer may require that the request to review the records be made in writing. The employer must make the records available within 7 days. The inspection is to take place at the place of employment or a place reasonably nearby. Modification of the time and place may be made if doing so is not objected to by the employee. Inspection or review includes the right to a copy at the employees expense, but the charge may not be more than the actual cost of reproduction. If an employer violates this right, the Equal Rights Division of the Wisconsin Department of Workforce Development will accept a complaint, investigate it and demand the employer’s compliance.

Attorney Gordon Leech

Job Performance Standards & The Law

I was recently asked whether an employer can threaten to fire an employee if the employee does not perform at 100% production. The short answer is yes. The law does not regulate what performance standards employers may set. Whether a particular standard is fair is not really relevant to the law. The exception to this general statement of the law is when an employer imposes a standard on an employee for an unlawful motive–discrimination based on a protected characteristic such as race, religion, gender, disability, age, etc., or in retaliation for an employee objecting to unlawful discrimination or pursuit of some other protected right. If the standard is imposed for the purpose of getting someone fired or to quit, and the decision-maker is doing so with an improper discriminatory motive, then the Federal, state and local discrimination laws may provide either some protection from that standard or a remedy for damages resulting from the violation.

What it means to be a “Right to Work” state

The phrase “right to work” does not mean an individual has any claim to a particular job. The phrase relates to one’s right to work for an employer subject to a collective bargaining agreement without having to join the union. In other words, you can’t be forced to join the union to get the job.

Employment At Will, What it Means

“Employment at will” is a legal principle that essentially means both the employer and employee are free to enter and leave the employment relationship at anytime. There is no contract of employment for any specified period of time. The only obligation, absent some specific agreement, is for the employer to pay an employee for the hours or days worked according to the agreed upon wage at the time. What it means for an employee in particular is that the employer can hire, fire, discipline, increase or decrease a wage, and change any other term or condition of employment for a good reason, a bad reason or even for no reason at all. The only limitations are that the employer may not take such actions doing so violates some written law like the federal or state employment discrimination laws, wage laws, medical leave laws, and the like.

Whether the “employment at will” applies depends on state law. Wisconsin, like majority of states, is an employment at will state.