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The Legal Handbook


For more than 100 years, The Previant Law Firm, S.C. has stood at the forefront of our changing legal landscape, championing the right of working men and women everywhere. Our dedicated, expert attorneys and advocates specialize in Labor, Employment, Personal Injury & Worker’s Compensation--through hard-work, dedication, historic acumen, progressive innovation and most of all, a commitment to honesty and integrity, both within our firm and in conscientious representation of our client

Call Us Today For a free consultation at: 888-213-0123 (Toll Free) 414-203-0514 (Milwaukee) 920-903-3000 (Appleton)

Visit our website at: Previant.com


TABLE OF CONTENTS

Personal Injury ...............................3

Workers Compensation ................9

Wage & Hours ...............................17

Employment Law ...........................23

Rights Of Union Members .............29

The Previant Law Firm, S.C. 310 West Wisconsin Avenue, Suite 100 MW | Milwaukee, WI 53203 4321 West College Avenue, Suite 200 | Appleton, WI 54915


Personal Injury When you are injured, you may have more than just physical pain to worry about. In many cases, you will have out-of-pocket medical expenses, which your health insurance does not cover, while at the same time losing income because of the inability to work. If you have been injured in an accident, it is critical that you have quality legal representation from a law firm that you can trust. The Previant Law Firm is one of Wisconsin’s premier personal injury law firms. From simple automobile accidents to complex products liability cases, we bring our considerable resources and expertise to every case. Because of our reputation for tenacity and success in the courtroom, in most cases we are able to obtain a fair settlement without a trial.

Q: Why do I need to retain an attorney following a motor vehicle accident? A: Insurance companies employ specialists to adjust and process every claim. Their jobs are to see that the insurance company takes full advantage of the law. Since their job is to represent the insurance company and not the injured party, unrepresented parties are often at a disadvantage. Having your own lawyer, trained and experienced in the field, allows you to level the playing field, achieve the best results, and deal with the insurance company on an equal basis. If you settle your bodily injury claim, it must include compensation for all the types of damages available to you, or you will likely lose your right to recover for those losses. 3 Personal Injury


Q: Is there a minimum personal injury settlement amount? A: There is no minimum or maximum settlement amount. However, if the damages in a case are quite small, retaining a lawyer may not be economically prudent. The lawyers at The Previant Law Firm have many years of experience working with clients to help assign a “value” to each of their cases.

Can’t find an answer?

We will give you an honest appraisal of whether a lawyer should become involved, or whether it is something you can handle yourself.

Speak with a representative 888-213-0123 Q: What money can I recover from a personal injury claim? A: A personal injury claim can be comprised of various types of damages. Because of our reputation and experience we are typically successful in settling our client’s cases without the need for litigation. However, when analyzing the settlement value of a case, it is useful to consider that a typical jury verdict requires the jurors to award compensation for the following categories of damages: • Past & Future medical expenses • Past wage loss

• Past & Future pain, suffering, disability and disfigurement • Future loss of earning capacity

• Spouses claim for loss of society, companionship, and services of their injured spouse.

Personal Injury 4


Q: Should I take my car to the insurance company’s repair facility to get it fixed? A: You are free to have your car repaired anywhere you choose. Although you are not required to use the insurance company’s repair facility, you may find that a pre-approved location will streamline and expedite the process of repairing your vehicle, particularly in situations where the repairs exceed the estimate. Q: How soon after the accident should I contact an attorney? A: If you are injured in an accident, it is important that you obtain legal counsel as soon as possible. Decisions often need to be made very quickly. Investigators may ask you to provide statements, and it is difficult to reconstruct facts at a later date if a professional, unbiased investigation has not been undertaken immediately. By retaining a lawyer at the earliest possible time, the lawyer will be able to conduct an immediate investigation, advise you on who to talk to, obtain pictures, and obtain witness statements. 5 Personal Injury

Q: Can I get a rental vehicle while my automobile is being repaired? A: We try to get the insurance company to pay the cost of a rental vehicle while yours is being repaired. However, the opposing party’s insurance company is not required to compensate you until at fault has been determined. You have the option to pay out-of-pocket for your rental, and then seek reimbursement from the opposing insurance company if you are not at fault. But until liability is determined, they will not agree to reimburse you for a rental vehicle. Often the simplest way to obtain a rental vehicle is to use your own insurance policy, assuming you have rental coverage. Typically, you are allowed to rent a vehicle until your car is repaired, or until the insurance company issues you payment in a total loss situation. Q: How much will The Previant Law Firm charge me to assist me with my property damage claim? A: We are pleased to assist our injury clients with their property damage claims as a courtesy and complimentary service.


Q: Are undocumented immigrants eligible to receive any compensation if they are injured in an automobile accident that is someone else’s fault? A: If you are an undocumented immigrant and are injured due to someone else’s negligence, you may be entitled to damages for medical treatment expenses, lost wages and pain, suffering and disability. Your immigration status will not affect your right to bring an action for damages.

Q: Does The Previant Law Firm handle other types of personal injury cases? A: The Previant Law Firm attorneys have experience handling all manner of personal injury cases. In addition to handling motor vehicle cases, our attorneys routinely represent individuals in cases involving dangerous products, dangerous premises, and all other types of personal injury.

Q: Will I lose my insurance deductible?

Q: How much does it cost to retain an attorney? What is a contingency fee?

A: If you use your own insurance company to pay for the damages to your car, your insurer will attempt to get reimbursed from the opposing insurance company, including your deductible. You will not be reimbursed your deductible until your insurance company is able to recover those funds from the opposing at-fault insurance company.

A: A client of The Previant Law Firm does not pay if we cannot make a recovery on his or her behalf. Our firm also advances all costs of prosecution required to develop the claim. We treat those costs as contingent as well, and will not ask for reimbursement of those costs if a recovery cannot be made.

In situations where the property damage aspect of your case is not resolved amicably through the insurance companies, we will attempt to include your deductible in the overall damages related to your case. Personal Injury 6


$13.9 M

settlement for the burn victims in a Brown County airplane crash.

$5.9 M

Waukesha County structured settlement for a driver who lost control of her vehicle as a result of debris left on the roadway by a paving contractor.

$4.8M

Ozaukee County settlement for a minor who was struck bya garbage truck while riding her bicycle.

Personal Injury Settlements Here’s a few more big wins we’ve had:

$2,300,000 Kenosha County jury verdict for injuries sustained by an 11 year-old boy who was struck by a motor vehicle while crossing a street. $1,750,000 Milwaukee County policy limits settlement for a Plaintiff operating a motorcycle who had to suddenly stop for a passing police car with its lights on when she was rear-ended and severely injured. $1,250,000 Brown County settlement for injuries in an automobile rollover. 7 Personal Injury


Product Liability Settlements $5,025,000 Milwaukee County jury verdict for a worker who sustained injuries when a vertical die-casting machine failed due to a defective bearing. $3,850,000 Milwaukee County jury verdict in a product liability claim against General Motors for defective motor vehicle design leading to brain injury. $2,400,000 Milwaukee County settlement for a seriously injured driver of defective motor vehicle. $1,800,000 Brown County settlement for a worker who lost a leg in a paper machine while working. $1,800,000 Milwaukee County settlement for burn injuries sustained by three workers when a pavement marking truck exploded. $1,400,000 Milwaukee County settlement for a product liability claim against elevator manufacturer for putting defective elevator into stream of commerce, causing serious injuries to several iron workers.

Let’s get to work, Wisconsin. Visit Us Online At Previant.com Personal Injury 8


Worker’s Compensation If you suffer a work related injury, you are entitled to receive worker’s compensation benefits from your employer. Unfortunately, receiving the benefits you are entitled to is often not a simple process. The Previant Law Firm has one of the largest worker’s compensation practices in Wisconsin. We have a 100 year history of working hard for workers like you, and will make certain that you receive every benefit you are legally entitled to.

WHAT IS AN INJURY? “Injury” means mental or physical harm to an employee caused by accident or disease. Accidental Injuries are caused by a single incident easily identifiable in time and place. Examples would be a slip, a trip or a fall; a blow or contact with an external object; or a heavy lift, push or pull causing injury. Occupational Disease is usually caused by exposure to injury producing factors in the workplace over an extended period of time. Included are occupational deafness from prolonged exposure to noise and disease caused by exposure to substances such as silica dust, asbestos dust, wood dust, chemicals or radiation.

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In addition, body deterioration due to repetitive work activities or exposure to environmental factors at work can qualify as an occupational disease. Examples are chronic back and spine diseases. Some forms of arthritis and other bone and joint diseases may also qualify.

What Is the Place of Employment? The place of employment includes going to and from the employment in the ordinary and usual way while on the employer’s premises, including the company parking lot, or the direct path from the lot to the work place.

CONDITIONS OF LIABILITY Condition Must Arise Out of Employment This has been defined in the law as “where, at the time of injury, the employee is performing service growing out of, and incidental to, his employment”. It must be more than merely being at the place of employment when injured. The activity at the time of injury must be part of the employment. An employee on a coffee break, on a lunch break, going to the restroom, getting a bit of fresh air (i.e. “personal comfort” activities) has not deviated from employment unless the extent of the departure is so great that an attempt to abandon the job temporarily may be inferred.

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MAKING THE CLAIM Notice of Injury The employer is entitled to notice of the injury within 30 days of the occurrence or within 30 days after the employee knew he sustained a work related injury or disability. If the employer knew or should have known of the injury, failure on the part of the employee to formally give notice will not be a legitimate defense by the employer to a worker’s compensation claim. Every injury, no matter how small, even if it causes no time loss or need for treatment, should be reported. It may become serious at a future date and failure to report may defeat a right to compensation. As much detail as possible, including date and time, should be reported. Actual symptoms or complaints should not be minimized. Decisions on compensability or permanent disability may be influenced by initial reporting. Medical care should be sought as soon as indicated. Failure to do so may adversely influence decisions on the causal connection between the injury and later disability. 11 Workers Compensation

6 Year Statute of Limitations – Accidental Injuries In an injury case, an employer’s responsibility for providing treatment or compensation for disability or death extends for 6 years after the date of last payment of compensation, or from the date of injury if no compensation is paid. Any payment of compensation renews the 6 year period. The 6 years can be kept alive indefinitely if a formal worker’s compensation claim is made by filing a Hearing Application. However, if a hearing is held and a final decision is made, the claim may be closed. A case may be held open after a hearing if the decision provides for an interlocutory order. Interlocutory orders are usually issued only when there is proof that future disability or medical treatment is probable. Undocumented Immigrants If you are an undocumented immigrant and you are injured on the job, you are entitled to receive benefits for wage loss, permanent partial disability and to have your reasonable and necessary medical expenses covered. However, there are certain benefits that you may not be eligible for.


DISABILITY PAYMENTS There are two different types of compensation payments: 1. Temporary Disability During the time an injured employee cannot work and is subject to treatment or healing, they will be paid the compensation rate due on a weekly basis. If an employee is totally unable to work, they will be paid the full compensation rate; if he works part-time or at a lower rate of pay while recuperating, they will be paid partial compensation. Temporary disability benefits are payable on the fourth day of disability. If an employee is out of work only three days, they do not qualify for temporary disability payments. After seven consecutive days of absence, an employee also receives the first three days of compensation. The day of injury is always excluded from compensation payment.

2. Permanent Disability When no further treatment as a result of the injuries is advisable and no further healing will occur, an injured person who suffers some type of permanent infirmity will be entitled to permanent disability benefits

PENALTY FOR BAD FAITH The employer or insurer may with malice or in bad faith try to defeat the employee’s rights to worker’s compensation benefits by unduly delaying payments or suspending payments when rightfully due, or by prematurely terminating payments or by failing to report an injury. In such situations, the penalty to be awarded will be up to 200% of compensation due but in no event more than $30,000.00.

Workers Compensation 12


THIRD PARTY CLAIMS Worker’s compensation is a limited remedy. It does not pay for actual loss of wages, either past, present or future; nor for pain and suffering; nor for a spouse’s deprivation of the services, aid, comfort or companionship of an injured spouse. If negligent acts of parties other than the claimant’s employer or co-employee caused the industrial injury, a separate claim called a “third party claim” can be made for the above losses. Examples of third party claims include:

Let’s get to work, Wisconsin. Visit Us Online At Previant.com 13 Workers Compensation

Construction site accidents; accidents occurring on unsafe premises where deliveries are being made or work is being done; product liability claims resulting from defective machinery, defective substances or dangerous chemicals, defectively designed equipment, or products without proper warning relative to use and operation; motor vehicle accidents; and assault by strangers or co-employees.


The Previant Law Firm, S.C. will not charge you for a consultation. Therefore, there is no reason to settle your worker’s compensation case or attempt to handle your third party case without a legal consultation at no charge.

Call Us Toll Free 1-888-213-0123

Third party cases are generally quite complicated and require a lawyer familiar with the field. The interpretation and application of the worker’s compensation law can be difficult and burdensome. The worker’s compensation insurers employ specialists in the field of worker’s compensation to adjust and process every claim. Their jobs are to see that the employer and insurer take full advantage of the law. Without being corrupt, they still will not give advantage to a claimant. Having his own lawyer, trained and experienced in the field, is the claimant’s opposing force to the adjuster. Workers Compensation 14


$395K

Milwaukee County settlement for driver who suffered a back injury when a load shifted on his flatbed trailer.

$340K

Rock County settlement for Laborer who suffered a back injury.

$295K

Milwaukee County settlement for 60 year-old worker who suffered a neck injury.

Get The Compensation You Deserve. Information regarding past recoveries, verdicts, and settlements is for illustrative purposes only. Each lawsuit is different, and recovery is dependent upon the circumstances and facts of each case. This information is not a prediction, guarantee, or promise that similar results can be obtained.

15 Workers Compensation


WORKER’S COMPENSATION SETTLEMENTS $300,000 Dane County settlement for mechanic who injured his low back lifting a brake drum. $285,000 Milwaukee County decision for truck driver who slipped on ice injuring his back. $255,000 Fond du Lac County settlement for worker who sustained a neck injury. $250,000 Outagamie County settlement for machinist who sustained an occupational injury to her neck that required multiple surgeries over a period of ten years. $250,000 Milwaukee County settlement for Teamster truck driver who injured his low back unloading his truck. $238,000 Wood County settlement involving a worker who sustained severe abdominal injuries while working as a cement truck driver.

Workers Compensation 16


WAGES & HOURS Being paid correctly for hours worked is a fundamental part of work. Under the Fair Labor Standards Act (FLSA), covered employees are entitled to be paid minimum wages and overtime after forty hours in a week. Wisconsin law also provides for timely payment of wages promised by the employer, as well as minimum wages, and overtime. Where employers fail to pay employees correctly or incorrectly treat employees as exempt from either the FLSA or Wisconsin law, employees have legally enforceable rights to claim the compensation they earn and deserve.

A SUMMARY OF WISCONSIN WAGE & HOUR LAW The Fair Labor Standards Act (FLSA) obligates employers to pay non-exempt employees for the time worked. It requires certain employers , to pay to non-exempt employees on average at least the minimum wage (currently $7.25 per hour) for their hours worked, and to pay to non- exempt employees overtime compensation at 1½ times the regular rate of pay for hours over 40 in any one week. It also prohibits certain forms of child labor, requires the payment of equal pay for women, and contains criminal and civil enforcement provisions.

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Coverage under the Fair Labor Standards Act The Federal Fair Labor Standards Act (FLSA) covers employees. It does not cover independent contractors. Volunteers are not employees. However, volunteering is not allowed in for-profit enterprises. The FLSA exempts certain employees from coverage. Common exemptions from both the minimum wage and overtime provisions include exemption for administrative, executive, and professional employees, outside salesmen, agricultural employees, certain students and apprentices, certain companions for the infirm and aged, and computer analysts and programmers or software engineers under some conditions. Common exemptions from coverage under overtime only include certain employees covered by Secretary of Transportation safety qualifications (i.e., truck drivers, mechanics and others), employees of rail and air common carriers, drivers and drivers-helpers making local deliveries on a trip basis, police and fire employees in small departments, and resident domestic servants.

Misclassifying employees as exempt is one way in which employers attempt to avoid paying minimum wage and overtime obligations. In some cases, employees are improperly classified as “independent contractors� to avoid paying overtime. In cases where employees have been misclassified as exempt from the FLSA, employees are entitled to recover the minimum wages and overtime pay they should have received under the law. The exemptions under the FLSA and Wisconsin law are more extensive than included in this brief summary.

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Wages & Hours 18


Failure to Correctly Compensate Employees for Hours Worked The federal minimum wage is currently $7.25. Many states also have minimum wage laws. In cases where an employee is subject to both state and federal minimum wage. Often, employers avoid paying employees wages and overtime by claiming that employees are not entitled to wages for working time.

Other examples include failure to count as hours worked employees’ time for attending mandatory training and meetings, for short or “on-duty” breaks, working while traveling, traveling away from the home community, or for donning and doffing clothing or other personal protective equipment required by their work. Under the FLSA, each employee must receive on average the minimum wage rate of $7.25 per hour for all of their hours worked.

Failure to compensate employees for “work” time is one of the most basic violations of state and federal wage laws. Examples of such problems include: • Having employees work “off the clock”. • Failing to pay employees due to inaccurate records of hours worked. • Paying employees for scheduled work time, rather than actual hours worked. • Improper rounding or illicit editing time records. • Permitting employees to “volunteer” to work without pay. 19 Wages & Hours


Failure to Correctly Calculate Overtime Under the FLSA, employers are required to pay covered employees at one and one-half times the regular rate of pay for all time in a workweek longer than forty hours. Unlike many collective bargaining agreements, the Act does not provide for daily overtime, weekend overtime, or double time. The FLSA counts only time actually worked toward reaching overtime thresholds. The FLSA does not specify any maximum number of hours that an employee may work in any given week. Overtime wages must be at time and one-half of the “regular rate of pay”. The statute permits the exclusion of some compensation, including for example discretionary bonuses, pension contributions, or gifts, from calculating overtime pay. All compensation not excluded by statute, such as non-overtime premium pay and health reimbursement account contributions, must be included in calculating overtime pay, including additional compensation in the overtime calculation may increase the employee’s regular rate, and therefore the amount of overtime pay he should receive.

Compensatory time off is generally not allowed outside a single pay period in the private sector. In the public sector, “comp time” is allowed but is subject to numerous regulations.

Provisions of Wisconsin Law Relating to Wages Wisconsin wage laws mirror many of the provisions of the FLSA. Where provisions of state law are more generous than the federal law, the more beneficial portions of state law prevail. For example, where hours of work are exempt from payment under federal law, but not under state law, employees may seek payment under the state law. Under Wisconsin law, employers are required to pay every employee no less frequently than once every 31 days. Employers must pay discharged or resigned employees no later than the date on which the employees would have been paid under the employer’s established payroll schedule.

Wages & Hours 20


Additionally, different pay schedules may apply where a business shuts down, an employee dies, for school employees, or pursuant to a collective bargaining agreement. The employer’s obligation is to pay to the employee the full amount of wages promised to the employee, rather than just the minimum wage. The employer also is not allowed to apply pay rate changes retroactively against the employee. Separate provisions of Wisconsin law also prohibit deductions for defective or faulty workmanship, lost or stolen property or damage to property, unless the employee either authorizes the deduction in writing, or there is a determination that the employer is at fault for the loss. State law also requires that employers state clearly on the employee’s pay check, pay envelope, or paper accompanying the wage payment the amount of and reason for each deduction from the wages due or earned by the employee. In Wisconsin, an employer must pay all employees for “on duty” meal periods. Such periods are to be counted as work time. An “on duty” meal period is one where the employer does not provide at least 30 minutes free from work. 21 Wages & Hours

Any meal period where the employee is not free to leave the premises of the employer will also be considered an “on duty” meal period. For adult employees, it is recommended, but not required that employers provide breaks.

Enforcement of State & Federal Wage Statutes Under the Fair Labor Standards Act, employees may file civil suit to collect unpaid wages and overtime. Under the Act, employees are able to recover unpaid wages plus up to 100% in liquidated damages (for a total of 200% of the unpaid wages). Employees are also able to collect attorneys’ fees. Wage collective suits can be brought by the Secretary of Labor, by an employee, or group. Class actions are not allowed, and employees must “opt in” to collect in such cases. Unions cannot sue for employees. There is a two year statute of limitations, or three years for a willful violation. To assert claims under Wisconsin law, claims may either be initiated by filing a claim with the Department of Workforce Development (DWD) or by filing an action in court.


There is a two year statute of limitations. If a claim is filed with the State, the limitations period commences 2 years before the date the claim is filed with the State. Any number of wage claims or wage deficiencies against the same employer may be joined in a single proceeding. Class actions are allowable under state law. Attorneys fees and costs are available to employees who bring wage claims. In a Wisconsin wage claim, an employee is entitled to recover the amount of unpaid wages plus increased wages of up to 50% (for a total of 150% of the unpaid wages) if the employee does not first file a DWD complaint, or increased wages of up to 100% (for a total of 200% of the unpaid wages) if an employee completes a DWD investigation before filing suit. Under both the FLSA and Wisconsin law, a wage claim is not barred, just because the employer failed to maintain adequate payroll records to allow the accurate calculation of owed wages. If an employer failed to maintain records required by law, such as accurate records of when the employees began and finished working each day, the employees may be permitted to estimate the amount of damages owed to them by testifying from their memories.

$1.1M federal court settlement collecting unpaid wages for hospital nurses who were subject to unlawful automatic lunch deductions.

$175,000

federal court settlement collecting unpaid wages resulting from improper calculation and recording of work time.

$130,000 federal court settlement and recovery on wage resulting from unpaid breaks in violation of Wisconsin law.

$112,500 federal court settlement for failure to properly compensate employees for travel time pay, overtime pay, and training pay.

Wages & Hours 22


EMPLOYMENT LAW Employees have the right to work without being subject to workplace discrimination. Both Wisconsin and federal statutes protect employees from certain types of adverse employment actions on the basis of age, race, sex, or disability. In addition, many employees have the right to take leaves of absence, either for their own serious health condition or for the purpose of family leave.


Employment Discrimination Wisconsin and federal law protects employees from workplace actions that are based on an employee’s age, race, color, religion, sex, national origin, or disability. The employment law attorneys at The Previant Law Firm, S.C., have pursued employment claims on behalf of employees in a wide variety of forums, including the state and federal courts. Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on race, color, religion, sex or national origin. The Wisconsin Fair Employment Act (WFEA) also prohibits discrimination on the basis of sexual orientation, arrest record, conviction record, and use or non-use of lawful products off the employer’s premises during nonworking hours. The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. Despite this act, many employers wrongfully terminate, refuse to hire or refuse to promote employees based on their age. Age discrimination is also covered under the WFEA. The Americans with Disabilities Act (ADA) prohibits discrimination against a qualified individual with a disability. A disabled employee is a person with a physical or mental impairment which substantially limits one or more life activities. It may also include individuals with a record of such impairment, individuals perceived as having such impairment or individuals associated with a disabled person. Disability discrimination is also covered by the WFEA.

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Employment Law 24


Family & Medical Leave Act The State and Federal Family and Medical Leave Act (FMLA) laws require covered employers to provide up to 12 weeks of job protected, unpaid leave in a 12 month period for the birth or adoption of a child, or for the serious illness of the employee, his or her spouse, child or parent. Covered employers under both State and Federal law include employers of 50 or more employees. To be covered under the Federal law, an employee must have worked for a covered employer at least 1,250 hours in the preceding 12 months and be employed for at least 12 months. To be covered under State FMLA, an employee must have worked for the employer at least 1,000 hours in the preceding 52 weeks and for at least 52 consecutive weeks. Under both acts, employers must continue paying health insurance premiums during the employee’s absence, and guarantee the employee the same or a comparable job upon return. For up to six weeks of family leave, an employee may substitute any accrued paid leave. 25 Employment Law

Thereafter, an employee may chose, or an employer may require, employees to substitute accrued vacation and personal days. For up to two weeks of medical leave, an employee may substitute any accrued paid leave. Thereafter, an employee may choose or an employer may require employees to first substitute all accrued medical leave, and then any other accrued paid leave. An employer found to have violated either act will be liable to eligible employees for damages equal to any wages, salary, employment benefits, or other compensation denied or lost by reason of the violation. Where no compensation or benefits have been lost, an employer is liable for damages equal to any actual monetary losses suffered by the employee due to the violation. Employers are also liable for interest on the amount of damages, attorney fees, expert witness fees, and other court costs incurred by the employee. Lastly, the court may order equitable relief such as employment, reinstatement or promotion of the employee. To enforce the state FMLA, employees must file a complaint with the Department of Workforce Development (DWD) within thirty (30) days of the last violation.


To enforce the federal FMLA, employees may file claims, in either state or federal court, or with the United States Department of Labor, within two (2) years of the last violation, or if the violation is willful, within three (3) years.

Plant Closures & Mass Layoffs The Worker Adjustment and Retraining Notification Act (WARN) provides employees with certain rights in the event their employer must lay off employees or close a plant. In many cases, the WARN Act requires an employer to give a 60-day notice before taking certain employment actions causing a loss of employment. For each day the employer violated the WARN Act’s notice requirements, the employer is liable to employees for back pay and benefits each employee would have earned. The WARN Act is triggered when an employer closes a plant or lays off a significant number of employees. An employer is subject to the notice requirements in the WARN Act if it is a business that employs at least 100 full-time employees or employs at least 100 workers who, combined, work

more than 4000 hours per week, not including overtime and excluding part-time employees. A “mass layoff” is a reduction in force not due to a plant closing, or a loss of employment at a single site that affects a significant number of employees. A loss of employment at a single site during any thirty-day period falls under the WARN Act’s requirements if it affects a minimum of fifty employees, who constitute at least 33% of the employer’s full time employees. An employer who lays off 500 or more full-time employees at a single work site, regardless of the percentage of workforce those 500 employees compose, is also subject to the WARN Act’s notification requirements.

Employment Law 26


Reporting Construction & Procurement Fraud On Federal Construction Projects Where federal dollars are used for public construction projects those dollars must be used correctly. Where an individual or institution submits fraudulent paperwork to make claims for payment to the federal government – including on federal Davis Bacon projects — filing the “false claims” violates the law. The Federal False Claims Act provides a mechanism for whistle blowers who report this kind of fraud to bring a lawsuit on behalf of the government with a private attorney. And if, as the result of the lawsuit, the government successfully recovers funds that were improperly paid, the whistle blower can recover a portion of the recovered funds. The FCA protects “whistle blowers” from retaliation for reporting the fraud and allows an individual with personal knowledge of the fraudulent conduct to bring a lawsuit on behalf of the government as the plaintiff, or “relator.” Generally, the relator should have personal knowledge of, and be the original source of the information about, the fraudulent activities. A FCA lawsuit may not be based on publicly available information about a fraud.

27 Employment Law


$500,000

Milwaukee County jury verdict for sexual harassment of a female worker.

$320,00

settlement for a disabled employee terminated in violation of the Americans with Disabilities Act and Family Medical Leave Act.

$197,500

Milwaukee County settlement for wrongful cancellation of a health insurance policy.

$535,000

federal court jury verdict for sexual harassment of a female worker.

$237,500

settlement for African-American workers who were denied transfers rights.

$110,000

settlement for a disabled employee terminated in violation of the Americans with Disabilities Act.

Information regarding past recoveries, verdicts, and settlements is for illustrative purposes only. Each lawsuit is different, and recovery is dependent upon the circumstances and facts of each case. This information is not a prediction, guarantee, or promise that similar results can be obtained.

Employment Law 28


RIGHTS OF UNION MEMBERS One of the best ways to protect the rights of workers is by forming and joining a union. Workers joining and supporting labor unions have protected rights under federal law, including under the National Labor Relations Act. Protected, concerted rights may be enforced through charges with the National Labor Relations Board or, where employees are subject to a collective bargaining agreement, through binding arbitration procedures. Knowing these rights is the first step in protecting workers in the workplace.

Rights of Employees to Engage in Concerted Activities The National Labor Relations Act gives employees the right to act together to try to improve their pay and working conditions, with or without a union. Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.�

29 Rights of Union Members


Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act. This requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. If employees are fired, suspended, or otherwise penalized for taking part in protected group a ctivity, the employees have the right to file charges with the National Labor Relations Board. Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection.

Weingarten Rights The right to Union representation during disciplinary interviews arises from either the collective bargaining agreement, state law or the decision in NLRB v. Weingarten, 420 U.S. 251 (1975). There is no “Weingarten law.” It is a rule made by the NLRB. It does not apply to public employees by its own force; however, some state public employment laws provide similar protections for public employees. In order to apply the Weingarten Rule: • The employee must affirmatively request union representation. • There is no duty to inform the employee of his rights. • Failure to make a request waives the right to have a representative. • The union cannot invoke the right for the employee. Weingarten does NOT apply to every meeting between an employee and a supervisor. There must be a reasonable belief that discipline will result from the investigatory meeting. Instructions, training, or observation by management are not “investigatory” in nature. If the employee is told no discipline will result, the interview is not “ investigatory.” If management has already “made up its mind,” interviews only for the purpose of announcing a pre-determined decision are not investigatory. Rights of Union Members 30

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