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Posts by Attorney David McClurg

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DOL ISSUES NEW OVERTIME RULE

Posted by Attorney David McClurg in Employer-Employee Relationship, Human Resources, Labor Relations / Comments

On March 7th, 2019, the U.S. Department of Labor (DOL) unveiled a long-awaited replacement to an Obama era rule (blocked by a federal court in November, 2016) that would have increased the salary level required for exemption from federal overtime regulations from $455/week ($23,660/year) to $913/week (over $47,000/year), and added over 4 million U.S. workers to the ranks of those eligible for overtime pay. Under the proposed replacement rule, the ...

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Supreme Court Holds that an Employer’s Actual Knowledge of Link Between an Employee’s Disability and Misconduct Resulting in Termination is Required to Prove Disability Discrimination

Posted by Attorney David McClurg in Employer-Employee Relationship, Human Resources, Labor Relations / Comments

An employer can be held liable under the Wisconsin Fair Employment Act if it takes an adverse action (including termination or other disciplinary action) against an employee “because of" the employee's disability. One of the most vexing problems for employers arises when, after terminating an employee for misconduct or rule violations, the employee claims that the conduct leading to the discipline was “caused by" their underlying disability. This has been ...

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The NLRB Returns Some Sanity to the Evaluation of Workplace Policies

Posted by Attorney David McClurg in Employer-Employee Relationship, Human Resources, Labor Relations / Comments

Under President Obama, the National Labor Relations Board issued a series of decisions finding a range of workplace policies to be unlawful because employees might “reasonably construe" the rules to restrict rights protected under the National Labor Relations Act (the “Act"). Rules found to “violate" the Act included rules requiring “civility" and restricting the use of recording devices in the workplace, prohibitions against defamation and many more.A “newly constituted" NLRB ...

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Supreme Court Upholds Class Action Waivers in Employment Arbitration Agreements

Posted by Attorney David McClurg in Employer-Employee Relationship, Human Resources, Labor Relations / Comments

The major employment-related news this month was the U.S. Supreme Court's decision, in a case one involving Wisconsin-based Epic Systems, that class action waivers included in arbitration agreements relating to employment disputes are enforceable. The Court has, based on the provisions of the Federal Arbitration Act, consistently upheld the validity of arbitration agreements in a variety of contexts over many decades. However, the National Labor Relations Board and several federal ...

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U.S. Supreme Court Confirms Our 7th Circuit Win in an ADA Accommodation Case

Posted by Attorney David McClurg in Reasonable Accommodations, Employer-Employee Relationship, Labor Relations / Comments

Several months ago, we told you about a case alleging that our client, Heartland Woodcraft, violated the ADA by denying an employee's request for an additional 2-3 months of leave to undergo back surgery after he had exhausted three-months of FMLA leave on conservative treatment alternatives. Heartland denied the request because it needed to fill the employee's second shift lead position, and believed it would only be able to find ...

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U.S. Supreme Court Asked to Review Our 7th Circuit Win in an ADA Accommodation Case

Posted by Attorney David McClurg in Labor Relations / Comments

In September of 2017 the 7th Circuit Court of Appeals issued a decision, following briefing and argument by Petrie + Pettit attorney Dave McClurg, affirming dismissal of an ADA complaint against our client, Heartland Woodcraft. The plaintiff in that action, Raymond Severson, alleged that Heartland violated the ADA by denying his request for an additional 2-3 months of leave to undergo back surgery after he had exhausted three-months of FMLA ...

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Court Decision Casts Doubt on Use of Incentives to Encourage Participation in Wellness Programs

Posted by Attorney David McClurg in Human Resources, Labor Relations / Comments

The use of biometric testing and health risk assessments in connection with wellness programs arguably violates the ADA's restriction on employment related medical examinations unless the inquiry is “job-related and consistent with business necessity." However, the Act allows such examinations and the collection of medical information as part of an “employee health program" as long as the employee's participation in the program is “voluntary" – a term the Act leaves ...

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7th Circuit Reaffirms: Multi-Month Leave is Not a Reasonable ADA Accommodation

Posted by Attorney David McClurg in Employer-Employee Relationship, Labor Relations / Comments

Over a year ago, I reported on a case I was handling in which an employee with a non-work-related back injury requested an additional 2-3 months of leave to undergo back surgery after exhausting his three-months of FMLA leave on more conservative treatment alternatives. Because the employer needed to fill the employee's second shift lead position, and believed it would only be able to find a competent replacement if it ...

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The Obama Overtime Rule is Dead

Posted by Attorney David McClurg in Employer-Employee Relationship, Labor Relations / Comments

Last November, a federal judge in Texas blocked implementation of the Department of Labor (“DOL") Rule that raised the salary an employee must earn to be exempt from federal overtime regulations from $455/week ($23,660/year) to $913 per week ($47,476/year). He held that the plaintiffs were likely to prevail on the merits of their argument that the DOL exceeded its authority by imposing such a large increase in the salary test. ...

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Employer-Friendly 7th Circuit Case Highlights Risk of Wage Claim for After Hours Email Communications

Posted by Attorney David McClurg in Labor Relations / Comments

The 7th Circuit Court of Appeals recently issued a decision that will be welcomed by employers, but also acts to remind us of potential trouble that employers face in connection with “after-hours" work performed on mobile devices. The case involved claims by Chicago police officers that they had not been paid for time they spent, after the end of their normal shifts, monitoring and responding to email messages on their ...

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