UPS Supply Chain Solutions and its delivery drivers that were classified as independent contractors are close to entering a nationwide class action settlement. UPS classified the drivers as independent contractors, which means the drivers were not paid for overtime, 1.5 times the regular rate of pay for every hour over 40 in a week, and did not receive employment benefits like health insurance. UPS says that it is changing the way it uses independent contractors because of this lawsuit. This lawsuit shows that employers may attempt to avoid paying workers overtime and other benefits of employment by misclassifying someone as an independent contractor while still maintaining control over the worker to such an extent that the classification is unlawful and wrongly denies the worker overtime pay and benefits.
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
What if you have a conviction or arrest record and an employer in Wisconsin does not hire you because of it? Well, you have rights. In Wisconsin, employers may not discrimination against an employee or applicant because of an arrest or conviction record. The exception is when the conviction substantially relates to the job. Also, if an employer intends to pull a background check on an employee or applicant, it must give notice, disclosure, to the person that it intends to do so and also get written permission from the employee or applicant to do so. Failure to either disclose or get written permission is a violation of Federal law, the Fair Credit Reporting Act. If a background report, even though accurate, is the basis for termination, not getting hired or other adverse employment action, the employer must abide by other notice and disclosure requirements. Most importantly, the employer must give advance notice of the termination, non-hire or other adverse action that it is going to take the action and that a report was used as part of its decision. The advance notice is so the employee or applicant can get a copy of the report, review and correct it if necessary. An employer must give notice of certain rights under the Federal law, in writing, when advising the employee or applicant of the adverse action. Failing to perform any of these obligations may give rise to a claim for damages against the employer or the agency that provided the employer a background report. Damages can include lost income, emotional distress or, if actual damages do not exist, statutory damages as determiend by a judge. The law also provides for the potential recovery of attorney’s fees and the cost of litigation.
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, employers may only make deductions from an employee’s pay
with written permission from the employee obtained before any loss
occurs. The law is found at Wisconsin Statutes section 103.455. If you
refuse to sign such a document, it is unlawful to terminate you for your
refusal. If you are not responsible for the loss due to negligence,
carelessness or willful and intentional conduct, which it seems is
apparent from your description, then any deduction by the employer is
quite burdensome on employees and probably unlawful. There are penalties
for making unlawful deductions under the law equal to twice the amount
of the deduction. Any written document or agreement in violation of this
law is void, which means it is unenforceable and could not negate the
employer’s liability for such a violation. An employee is also protected
from retaliation for bringing a claim against an employer that violates
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.
Background Reports or Background Checks that are inaccurate can cost you your job. These reports are often governed by the Fair Credit Reporting Act as a consumer report. An employer must disclose or tell you in writing that it will obtain such a report and it must get your permission in writing and in advance of obtaining such a report. Your permission must be requested in a single document, not combined with an application. If the employer takes some adverse action, like firing you from your job or not hiring you, based on information in the background report, then it must also inform you of this fact in advance of taking the action, give you a copy of the report and an opportunity to correct any inaccuracies. When an employer jumps the gun and fires or fails to hire without the advance notice and opportunity to correct, the employer is likely in violation of your rights under federal law. Such violations carry the right to recover damages.