Category Archives: The Weld Report

“Alright, Break it Up!”: FERPA and Digitally Editing Video of a School Fight

By: Attorney Sven W. Strutz – Weld Riley, S.C.

On an instinctual level, it’s the call that no student migrating between classes can resist: “Fight!  Fight!”

With that, a pack of students form a ritual circle to bear witness to this primal contest. Maybe a punch or two is thrown. Perhaps a nose bloodied. Or clothing torn. Like life in the state of nature, the fight is nasty, brutish, and short. Inevitably, the combatants are separated and the spectators admonished: “Get back to class!” 

Continue reading “Alright, Break it Up!”: FERPA and Digitally Editing Video of a School Fight

Proper Identification of Collateral in a Financing Statement: Is Reference to an Unattached Security Agreement Sufficient?

By: Attorney William E. Wallo– Weld Riley, S.C.

In September, the Seventh Circuit Court of Appeals issued its decision in First Midwest Bank v. Reinbold (In re 180 Equipment, LLC), 938 F.3d 866 (7th Cir. 2019), in which it reversed the lower courts and determined that a financing statement which neither contained nor attached a description of the actual collateral was nonetheless sufficient under the Illinois version of the Uniform Commercial Code. While not directly implicating Wisconsin law, the case raises the question whether, under similar facts, a Wisconsin lender who files a financing statement which asserts a security interest in collateral “described in” a related security agreement is adequate for purposes of perfecting the security interest when the related document is not itself filed as an attachment.

Continue reading Proper Identification of Collateral in a Financing Statement: Is Reference to an Unattached Security Agreement Sufficient?

Bill Has Come Due: Part II Upcoming EEO-1 Form Submission Deadline

By: Attorney David A. Richie– Weld Riley, S.C.

Dedicated readers of the Weld Report may recall a blog post from a few months ago announcing that a federal district court had ordered all mid-size and large private employers to collect data about how much they pay their employees – broken down by sex, race, and ethnicity – and submit that data to the U.S. Equal Employment Opportunity Commission (EEOC) by September 30, 2019.

Continue reading Bill Has Come Due: Part II Upcoming EEO-1 Form Submission Deadline

NLRB Makes Quick Work of Worker Misclassification Violation Theory in Velox Express Case

By: Attorney Bryan T. Symes – Weld Riley, S.C.

Late last week, while many were preparing for traditional Labor Day observances, the Republican-controlled Labor Board quietly made quick work of the Obama-Board’s worker misclassification theory of liability [which former General Counsel and Obama appointee, Richard Griffin, enthusiastically advanced during his term].   The Labor Board did so in Velox Express, Inc., 368 NLRB No. 61 (Aug. 29, 2019), available here: [https://www.nlrb.gov/cases-decisions/decisions/board-decisions].

Continue reading NLRB Makes Quick Work of Worker Misclassification Violation Theory in Velox Express Case

Does This Bus Stop at ADA Street?: Obesity Not an ADA “Disability” Unless Caused by an Underlying Physiological Condition

By: Attorney Sven W. Strutz – Weld Riley, S.C.

The phrase “America’s Obesity Epidemic” gets a lot of play in the press.  However, regardless of whether obesity constitutes a “disease” and an “epidemic” from a medical perspective, obesity does not—standing alone—constitute a “disability” from the perspective of federal antidiscrimination law in the Seventh Circuit [which covers Wisconsin, Illinois, and Indiana].  This is the rule even in cases of “extreme” obesity.

Continue reading Does This Bus Stop at ADA Street?: Obesity Not an ADA “Disability” Unless Caused by an Underlying Physiological Condition

Fifth Circuit Upholds Injunction Blocking Enforcement of EEOC Guidance on Criminal History Bans

By: Attorney Jerilyn Jacobs – Weld Riley, S.C.

While the EEOC’s 2012 enforcement guidance regarding arrest and convictions records may have been received by most Wisconsin employers with a collective “ho hum,” employers in other states without the arrest and conviction record protections in existence in Wisconsin had a stronger reaction. The State of Texas was one such employer.  It responded with a lawsuit.

Continue reading Fifth Circuit Upholds Injunction Blocking Enforcement of EEOC Guidance on Criminal History Bans

Estate Planning Considerations For Your Bank Accounts

By: Attorney Cindy L. Hangartner – Weld Riley, S.C.

Avoiding Probate

Probate is the court process required to transfer assets to your beneficiaries if your total assets requiring probate are $50,000 or more. One way to avoid probate is by designating beneficiaries on your bank accounts. The beneficiary designation, also called a POD (payable on death) or TOD (transfer on death), is one way to transfer assets directly to your beneficiaries without probate. Naming a designated beneficiary is generally a non-probate transfer.

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“Have it Your Way”: Court of Appeals Applies “Burger King Rule” to Public Records Requests for Electronic Records

By: Attorney Sven W. Strutz – Weld Riley, S.C.

Public records requests are a bit like the Whopper.  Vintage Burger King commercials featured the slogan “have it your way.”  An accompanying jingle went something like this:  “hold the pickles, hold the lettuce, special orders don’t upset us.”  It is now clear that, under Wisconsin’s public records law, a person making a “special order” for public records — i.e. records in a specifically identified or native electronic format—is entitled to have that request honored.

Continue reading “Have it Your Way”: Court of Appeals Applies “Burger King Rule” to Public Records Requests for Electronic Records

Two Weeks’ Notice Going the Way of the Dodo?

By: Attorney Bryan T. Symes – Weld Riley, S.C.

Recently, Inc.com published an interesting article [the columnist even uses the word “miscreants,” which alone is pretty exciting in my view], through which the columnist suggests that employee-provided two weeks’ notice of separation may become a thing of the past.   The brief, engrossing article is available here: [https://www.inc.com/chris-matyszczyk/employees-have-started-doing-something-truly-insulting-to-their-bosses-the-bosses-are-really-angry.html].

Continue reading Two Weeks’ Notice Going the Way of the Dodo?

Loud Pipes Saves Lives: But How Loud Is Too Loud?

By: Attorney Christine A. Gimber – Weld Riley, S.C.

A popular saying amongst motorcyclists is, “Loud pipes save lives.”  If others vehicles can hear you coming, they will be less likely to turn in front of you or pull into your lane.  For this reason1, many bikers modify the exhaust on their motorcycles to make the cycle more noticeable to other motorists. 

Continue reading Loud Pipes Saves Lives: But How Loud Is Too Loud?

NLRB’s Prime Healthcare Decision: Time to Cure Ailing Mandatory Arbitration Agreements

By: Attorney Bryan T. Symes – Weld Riley, S.C.

Earlier this month, the Republican-controlled National Labor Relations Board (NLRB or Board) issued an employer-unfriendly decision concerning the acceptable scope of pre-dispute mandatory arbitration agreements between employers and employees. The case is Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (June 18, 2019), available here: https://apps.nlrb.gov/link/document.aspx/09031d4582c59485. As explained below, in light of Prime Healthcare, your company’s model, mandatory arbitration agreement may need a routine checkup.   

Continue reading NLRB’s Prime Healthcare Decision: Time to Cure Ailing Mandatory Arbitration Agreements

Local Parents Represented by Weld Riley, S.C. Challenge Grandparent Visitation Law and Prevail at Wisconsin Supreme Court

Cacie M. Michels and Keaton L. Lyons are parents of a nine-year-old girl.  They are unmarried but amicably share custody of their daughter.  After their daughter began kindergarten, her schedule began to fill up with new activities and commitments.  As a result, she spent less time with her grandparents, including with her paternal grandmother, Jill R. Kelsey.

Continue reading Local Parents Represented by Weld Riley, S.C. Challenge Grandparent Visitation Law and Prevail at Wisconsin Supreme Court

Wisconsin’s Industrial Hemp and CBD: After Decriminalization Comes Regulation

By: Attorney William E. Wallo– Weld Riley, S.C.

The cannabis industry is often been equated to the “Wild West” because of its heady combination of economic possibilities and uncertain legalities. On a state level, the trend toward legalization of marijuana has picked up steam in recent years, with nearly half the country passing some sort of legislation. Wisconsin has not yet moved to join those states which have legalized its use (medically or otherwise), but there has been activity on another cannibas front: namely, the use of cannabidiol, or CBD.

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What the U.S. Supreme Court’s Fort Bend County Decision Really Means for Employers

By: Attorney Jerilyn Jacobs – Weld Riley, S.C.

The United States Supreme Court issued a decision this week that has created some stir, and perhaps some confusion, amongst employers and employment law attorneys. The issue that was resolved by the Supreme Court was procedural in nature, and not necessarily the game changer that some have thought to be.

Continue reading What the U.S. Supreme Court’s Fort Bend County Decision Really Means for Employers

No More “Double-Secret Probation”?: Title IX’s Evolving Standards and Due Process in Campus Sexual Harassment and Misconduct Cases

By: Attorney Sven W. Strutz – Weld Riley, S.C.

Last November, Secretary of Education Betsy DeVos proposed a significant overhaul of the rules for colleges investigating complaints of sexual harassment or assault.  This additional step was taken after an April 4, 2011 “Dear Colleague” letter issued by the Obama Administration’s Department of Education was rescinded by the Trump Administration in 2017.

Continue reading No More “Double-Secret Probation”?: Title IX’s Evolving Standards and Due Process in Campus Sexual Harassment and Misconduct Cases

NLRB Chief Calls for More Policing of Financial-Core Member Fee Objections – Advocates For More Employee-Friendly Standard in Chargeability Challenges

By Attorney Bryan T. Symes – Weld Riley, S.C.

Earlier this month, the National Labor Relations Board’s (“Board”) general counsel, Peter B. Robb, issued Memorandum GC 19-06 [available here:https://www.nlrb.gov/news-publications/nlrb-memoranda/general-counsel-memos], through which he advocates for a more employee-friendly standard in connection with claims that unions have allegedly overcharged financial-core members [also commonly referred to as “dues-paying nonmembers”] in connection with activities beyond the scope of collective bargaining, contract administration and/or grievance adjustment, as explained below.   

Continue reading NLRB Chief Calls for More Policing of Financial-Core Member Fee Objections – Advocates For More Employee-Friendly Standard in Chargeability Challenges

What Is Bankruptcy?

By: Attorney Christine A. Gimber – Weld Riley, S.C.

People occasionally find themselves with medical debt, credit card debt or other debt that has grown too large for them to maintain any longer.  As a result of not being able to pay accumulated debt, a person may find herself subject to lawsuits and even garnishment of wages.  With no other options, bankruptcy may be the only way to find relief.  

Continue reading What Is Bankruptcy?

Bill Has Come Due: Employers Must Provide Pay Data to EEOC by Sept. 30

By: Attorney David A. Richie– Weld Riley, S.C.

On April 25, 2019, a federal district court in Washington D.C. issued a ruling that ordered all mid-size and large employers to collect data about how much they pay their employees – broken down by sex, race, and ethnicity – and submit that data to the U.S. Equal Employment Opportunity Commission (EEOC) by September 30, 2019.

Continue reading Bill Has Come Due: Employers Must Provide Pay Data to EEOC by Sept. 30

Is It Always Illegal to Run a Red Light?

By: Attorney Christine A. Gimber – Weld Riley, S.C.

It is likely that most motorcyclists have encountered the phenomenon of stopping at a red light only to be left sitting, waiting for the light to turn green.  The light seems not to realize the cyclist is present and continues to stay red.  Worse, a line of cars begins piling up behind the rider, honking their frustration at being held up behind a motorcycle that can’t make the light change.

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On the Road Again: Determining when Travel Time is Paid Time

By: Attorney Mindy K. Dale– Weld Riley, S.C.

Whether time spent in travel is compensable time depends on the kind of travel involved and how the travel time is treated under state and/or federal law.  This means that most employers in Wisconsin must comply with both the federal Fair Labor Standards Act (FLSA) and state statutes and regulations.  And while state and federal regulations often parallel each other, how state and federal courts have interpreted the provisions of each may differ.  Case in point is Kieninger and Meek v. Crown Equipment Corporation d/ba/ Crown Lift Trucks, LLC, decided by the Wisconsin Supreme Court on March 20, 2019.

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Wisconsin Court of Appeals Clarifies Discovery Rule for Fraudulent Transfers

By: Attorney William E. Wallo– Weld Riley, S.C.

Creditors chasing payment from defaulting companies often find there simply aren’t enough assets to go around. On occasion, however, assets have been transferred to third parties within the months (or years) prior to the debtor’s ultimate financial failure. Wisconsin law, like the law of most states, allows creditors to potentially recover those assets under the Uniform Fraudulent Transfer Act (“UFTA”) if they were either (i) transferred with the “actual intent” to hinder, delay, or defraud creditors or (ii) transferred for less than “reasonably equivalent value” at a time when the debtor was either insolvent or lacked sufficient remaining assets to carry on its business.

Continue reading Wisconsin Court of Appeals Clarifies Discovery Rule for Fraudulent Transfers

Wisconsin School Districts’ Open-Enrollment Program No Longer Open for Debate: Seventh Circuit Decides the Program Does Not Discriminate – When Implemented Properly

By: Attorney Lindsey S.M. Minser – Weld Riley, S.C.

With open-enrollment season upon us in Wisconsin, it is important to take note of two recent Seventh Circuit Court of Appeals decisions.  Both addressed discrimination against students with disabilities who sought to enroll in nonresident school districts.  The ADA and the Rehabilitation Act prohibit discrimination against individuals “by reason of the disability” or “on the basis of the disability.”  This requires a student claiming discrimination to prove that, but for her disability, she would have been able to access the services or benefits she seeks.  Put another way, a student would have to prove that (1) she was a qualified individual with a disability, and (2) she was denied governmental benefits because of her disability.

Continue reading Wisconsin School Districts’ Open-Enrollment Program No Longer Open for Debate: Seventh Circuit Decides the Program Does Not Discriminate – When Implemented Properly

Trump’s DOL Splits the Baby in New Overtime Regulations

By: Attorney Stephen L. Weld – Weld Riley, S.C.

During the Obama Presidency, the Department of Labor (DOL) proposed significant changes to the rules implementing the so-called “white collar” exemptions to the Fair Labor Standards Act (FLSA).  Under the FLSA, employees are considered hourly, with overtime premiums required for hours worked over 40 in a week, unless they are paid by salary and their job duties fit into one of the exemptions – executive, administrative, or professional (EAP). 

Continue reading Trump’s DOL Splits the Baby in New Overtime Regulations

Lurking Liability for Inaccessible Websites

By: Attorney David A. Richie – Weld Riley, S.C.

The Americans with Disabilities Act (ADA) is the most far-reaching accessibility legislation in the country.  When one thinks of “accessibility” under the ADA, perhaps images of buildings with wheelchair ramps or bathrooms with “men” and “women” written in Braille come to mind.  Less likely to come to mind – but proving to be equally as important – is ensuring that an organization’s or municipality’s website is ADA accessible.

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NLRB Kicks Skycap’s Wrongful Discharge Claim to the Curb: Employee’s Comment in Group Setting is Mere Gripe

By: Attorney Bryan T. Symes – Weld Riley, S.C.

Earlier this year, the National Labor Relations Board eliminated a bit of baggage remaining from the previous regime, when it determined that an employee’s comment—arguably concerning his wages and working conditions—when made in a group setting involving coworkers and management, is not per se “concerted” activity that may be eligible for protection under the National Labor Relations Act.    This is a significant development for employers, because the Board has now narrowed the circumstances under which employees may invoke the protection the Act.   The case is Alstate Maintenance, LLC, 367 NLRB No. 68 (2019).  

Continue reading NLRB Kicks Skycap’s Wrongful Discharge Claim to the Curb: Employee’s Comment in Group Setting is Mere Gripe

The Law of Unintended Consequences: Federal Tax Provision Designed to Address “Me Too” Issue is Creating Confusion and Uncertainty

By: Attorney Jerilyn Jacobs – Weld Riley, S.C.

After the initial news story detailing numerous accusations of sexual harassment against movie producer Harvey Weinstein broke in October 2017, a tidal wave of allegations and revelations followed. Amongst the revelations were numerous accounts of instances where a company employing a high-level executive or other high-profile, highly paid individual settled a sexual harassment claim – or sometimes multiple claims – with the claimant or claimants being prohibited from talking about the terms due to a nondisclosure agreement. One of the focal points of the subsequent “me too” movement was to encourage victims of harassment and sexual abuse to speak up and tell their stories. The 2017 Time Person of the Year issue, published on December 18, 2017, featured prominent women who had recently told their stories. The magazine’s cover called them “The Silence Breakers.”

Continue reading The Law of Unintended Consequences: Federal Tax Provision Designed to Address “Me Too” Issue is Creating Confusion and Uncertainty

DOL Provides Opinion Letter Concerning “Reasonable Relationship” Test for Exempt Status

By: Attorney David A. Richie – Weld Riley, S.C.

If you’re reading this blog, you’re probably familiar with the Fair Labor Standards Act (FLSA); it’s the law that requires employers to pay their employees for overtime and at least minimum wage.  What you might not be as familiar with is the “executive, administrative, or professional employee” exemption that allows employers to avoid these requirements.  29 U.S.C. § 213(a)(1).  Typically, an employee must be paid on a “salary basis” to take advantage of the exemption.  What happens, though, when an employee earns a guaranteed weekly salary, but also gets paid on an hourly, daily, or shift basis?  Can such an employee still qualify for the exemption?   Thankfully for employers – who are subject to steep penalties for misclassifying their employees – the Department of Labor’s Wage and Hour Division (WHD) addressed this question in a recent opinion letter.

Continue reading DOL Provides Opinion Letter Concerning “Reasonable Relationship” Test for Exempt Status

Safety First – Trump OSHA Makes Employer Post-Accident Drug Testing Safe Again

By Attorney Bryan T. Symes and Attorney David A. Richie – Weld Riley, S.C.

Under prior Obama-OSHA guidance addressing post-accident drug testing [issued on May 12, 2016], employers often faced an unenviable dilemma when accidents happened—test in an environment marked by uncertainty caused by a lack of clear administrative guidance about how employers must determine if a drug likely contributed to the accident [OSHA’s “bee sting” example was not terribly instructive], or forego testing altogether.  Understandably, without clear direction, employers were concerned that testing could be viewed as retaliatory under the Obama-OSHA guidance. Since May 12, 2016, the employer community has been clamoring for better, clearer direction.

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Expunction Junction, What’s Your Function: Labor and Industry Review Commission Determines that “Substantial Relationship” Defense Cannot Be Based Upon Expunged Convictions

By Attorney Bryan T. Symes – Weld Riley, S.C.

Recently, the State of Wisconsin Labor and Industry Review Commission (“LIRC”) provided the employer community with an educational nugget concerning how to best, proactively analyze potential conviction-record discrimination scenarios in connection with applicants and current employees.    More specifically, through its opinion in Staten v. Holton Manor, a copy of which is available here: http://lirc.wisconsin.gov/erdecsns/1533.htm, LIRC determined that the oft-cited “substantial relationship” defense is unavailable when an employer predicates an employment-related decision on an applicant’s/employee’s expunged conviction record.

Continue reading Expunction Junction, What’s Your Function: Labor and Industry Review Commission Determines that “Substantial Relationship” Defense Cannot Be Based Upon Expunged Convictions

No Cakewalk: SCOTUS to Determine Proper Interplay Between Religious Liberty Rights and Anti-Discrimination Law

By Attorney Bryan T. Symes – Weld Riley, S.C.

Recently, during a supervisor-training session I conducted with one of my colleagues to address the “#MeToo uprising,” upper-management personnel asked me about the workplace implications, if any, of the Masterpiece Cakeshop case that is set to be heard by the Supreme Court of the United States (“SCOTUS”) tomorrow, December 5, 2017.   I responded that reconciling religious liberty rights and anti-discrimination protections is no cakewalk [if you know me, you know this cheesy pun is totally intended]—and that I don’t envy the Justices in the slightest. Continue reading No Cakewalk: SCOTUS to Determine Proper Interplay Between Religious Liberty Rights and Anti-Discrimination Law

Hit the Road Jack: Trucking Company Had Just Cause To Terminate Employee’s Employment for Violating Work Rules

By Attorney Bryan Symes

Employers are generally much more restricted in connection with employee discipline in the unionized workplace setting.   To that end, one hallmark of the typical employer/union relationship is the existence of a labor agreement that incorporates the so-called “just cause” standard of employee discipline—which is in stark contrast to the concept of “at-will” employment applicable to most non-union work environments.   In the unionized workplace setting, what is, and what is not, appropriate in terms of discipline for employee misconduct under the “just cause” standard has developed through decades worth of labor-arbitration decisions.    One recent labor-arbitration decision is the latest reminder of what an employer must do to increase the likelihood that a termination decision will withstand “just cause” scrutiny.   The decision is In re ADM Trucking, Inc. and Bakery, Confectionary, Tobacco Workers, and Grain Millers International Union, Local 103G, 137 LA 1469 (Oct. 5, 2017).  Continue reading Hit the Road Jack: Trucking Company Had Just Cause To Terminate Employee’s Employment for Violating Work Rules

Federal Court to Whole Foods – Candid Camera Policy No Laughing Matter under the NLRA

By: Attorney Bryan Symes

Recently, the federal Second Circuit Court of Appeals [which makes decisions primarily impacting businesses located in Connecticut, New York and Vermont], in an unpublished summary order [which carries no precedential impact], upheld a National Labor Relations Board decision that the popular grocery chain, Whole Foods, violated the National Labor Relations Act by maintaining an overly-broad no-recording policy.   The opinion comes in Whole Foods Mkt. Grp., Inc. v. NLRB, Case No. 16-346, Doc. No. 81-1, available here.

Continue reading Federal Court to Whole Foods – Candid Camera Policy No Laughing Matter under the NLRA

For Crying Out Loud: Employee’s Out-of-Character Tears Place Employer on Constructive Notice of Need For FMLA Leave

By: Attorney Bryan Symes

Okay, so there’s no crying is baseball—that much we know with certainty [thank you, Tom Hanks].   Not the case with workplaces, however.   In fact, recently, a federal court sitting in Illinois addressed whether a former employee—who “began crying regularly and uncontrollably at work”—placed her former employer on notice of a need for FMLA leave.  The case is Valdivia v. Township High School, District 214, available here.   In Valdivia, the former employee alleged that her employer interfered with her rights under the FMLA by failing to provide her with notice that she had a right to take job-protected leave under the FMLA, even though her former employer allegedly knew or should have known that she suffered from a medical condition that made performing her job untenable. 

Continue reading For Crying Out Loud: Employee’s Out-of-Character Tears Place Employer on Constructive Notice of Need For FMLA Leave