Employment & Labor Law

When provided with the right work environment, employees are more productive, employers are more profitable, and issues between employees and employers decrease significantly. Employment laws, correctly implemented and carried out, seek to strike the delicate balance between the needs of employees and employers. The following non-exhaustive list represents a general overview of current employment laws governing the work environment.

Employment Discrimination

An employee that suffers a discriminatory adverse action (i.e. termination, demotion, denied a promotion, and failure to hire) has the option to bring a lawsuit against their employer.

Wisconsin has enacted the Wisconsin Fair Employment Act to protect employees from discrimination on the basis of age, ancestry, arrest record, color, conviction record, creed, disability, marital status, race, national origin, sex, sexual orientation and use or nonuse of lawful products.

Illinois has enacted the Illinois Human Rights Act to protect employees from discrimination on the basis of race, color, religion, sex, sexual harassment, national origin, ancestry, military status, age (40 and over), order of protection status, disability (physical and mental), marital status, sexual orientation (including gender-related identity), unfavorable military discharge, arrest record (or criminal history record ordered expunged, sealed or impounded), citizenship status (born or naturalized U.S. citizen, U.S. national or documented immigrant), language (any language use not related to job duties), pregnancy (including child birth or related medical or common conditions), retaliation (for opposing unlawful discrimination), and coercion/aiding and abetting (helping or forcing a person to commit unlawful discrimination). To be actionable under the Illinois Human Rights Act, the employer must employ at least fifteen (15) or more employees in the State of Illinois unless: (i) the charge alleges sexual harassment, pregnancy, retaliation or physical or mental disability discrimination (only one (1) employee is required in this case); (ii) the employer is a public contractor (e.g. someone who does business with the State of Illinois or is a unit of local government); or (iii) the employer is a unit of State government.

Federal statutes carry similar protections, including: Title VII of the Civil Rights Act of 1964 (prohibits discrimination on the basis of sex, race, color, national origin and religion); Age Discrimination in Employment Act (“ADEA”) (prohibits discrimination on the basis of age – over 40 years of age); Americans with Disabilities Act (“ADA”) (prohibits discrimination on the basis of mental of physical disability). The protections of Title VII, ADEA, and ADA apply only to employers with fifteen (15) or more employees.

McDonald & Kloth, LLC has successfully represented both employers and employees regarding discrimination claims. If you have experienced discrimination in the workplace or have received a complaint of discrimination, contact us immediately.

Sexual Harassment

State and federal law make it unlawful to harass an employee (or applicant for employment) based upon his/her sex. This includes unwelcome sexual advances, comments, innuendos, requests for sexual favors, touching, and other conduct of the sexual nature. This also includes harassment aimed specifically at the person’s gender, as in the case where one employee chooses to treat another employee poorly simply because of that person’s gender. Harassment may occur to men and women, and the harasser may be of the opposite or same sex as the person being harassed. The harassmer may not even be an employee of the employer, such as a consultant, client, customer, or independent contractor. Actionable sexual harassment occurs when the harassment has become so severe or pervasive as to create a hostile work environment or result in an adverse employment action (i.e. an action affecting the terms and conditions of the employee’s employment).

For employers, it is imperative that when a sexual harassment complaint is received, a prompt and comprehensive investigation is conducted and remedial action is taken. Engaging in these steps will ensure that employees are protected from unwarranted sexual advances. Importantly, providing a work environment free of sexual harassment will reduce liability exposure.

For employees, experiencing sexual harassment can be a traumatic experience, especially if the harasser is a supervisor. Most employers have a complaint reporting system in place to protect employees against sexual harassment or discrimination in the workplace. Therefore, it is imperative that you place your employer on notice by following the proper complaint procedures. Employment laws protect employees that bring a good faith complaint of sexual harassment or discrimination from retaliation.

McDonald & Kloth, LLC has successfully represented both employers and employees in sexual harassment claims. If you have experienced sexual harassment in the workplace or have received a complaint of sexual harassment, contact us immediately.

Retaliation

Retaliation occurs when an employer subjects an employee to an adverse employment action (for example, termination, demotion, failure to promote, transfer, reduction in pay or benefits, etc.) because that employee either has engaged in protected activity. The term “protected activity” generally refers to a situation where an employee: (i) complains of and/or reports discrimination or harassment in the workplace aimed at him/her, (ii) complains of and/or reports discrimination or harassment in the workplace aimed at another person, (iii) filing a charge with the U.S. Equal Employment Opportunity Commission or the equivalent state administrative agency (Department of Workforce Development – Equal Rights Division in Wisconsin; Department of Human Rights in Illinois), and (iv) whistleblowing.

If you believe you have been the victim of retaliation in the workplace, contact the employment attorneys at McDonald & Kloth, LLC. Our attorneys have extensive experience representing both employees and employers in retaliation cases.

Disability Discrimination Laws

The Americans with Disabilities Act (ADA) as well as state law (Wisconsin Fair Employment Act; Illinois Human Rights Act) prohibits employers from discriminating against or harassing employees (and applicants) based upon a real or perceived disability. These laws also require employers to provide a disabled employee with a reasonable accommodation that is necessary for the disabled employee to perform his or her job so long as the accommodation does not create an “undue hardship” for the empoloyer.

What constitutes a reasonable accommodation varies from situation to situation, and is analyzed on a case-by-case basis. It is important that the disabled employee seeks qualified legal counsel to negotiate the accommodation with the employer. Such accommodations may include job transfer or reassignment, altered work schedule, modified office equipment or technology, accessible office space, and intermittent leaves of absence. This is a non-exhaustive list.

Whether you are an employee or an employer, the experienced attorneys at McDonald & Kloth, LLC can help you navigate and successfully resolve disability-related employment issues.

Read about one of our cases: City of Racine workers files lawsuit alleging race & disability discrimination

Age Discrimination Laws

The Age Discrimination in Employment Act (ADEA) as well as state law (Wisconsin Fair Employment Act; Illinois Human Rights Act) prohibits employers from discriminating against or harassing employees (and applicants) because the employee is 40 years of age or older.

For employers, the ADEA is not the only issue to worry about with regard to employee relations. For instance, the Older Workers Benefit Protection Act mandates additional requirements on employers, especially when negotiating a severance package or settlement agreement.

Family Medical Leave Act

In order to be entitled to leave under either the FMLA or WFMLA, the employer must employ at least 50 or more employees during the relevant period of time, typically one year from an employees anniversary date. In addition, an employee is eligible if they have worked either 1,000 hours for WFMLA or 1,250 hours for FMLA within a 12-month period. If an employee is eligible, they may take up to 12 weeks of unpaid leave during any 12-month period under the FMLA. Under the WFMLA, an employee may take up to 2 weeks of unpaid leave during any 12-month period, which runs concurrent with any federal FMLA leave. A man or a woman may use this time to care for a newborn child or a parent, for example. If you have had trouble getting permission for this time off, or if you have suffered retaliation for taking time off,

There are many nuances to FMLA and WFMLA regulations. If your employer utilizes a no-fault attendance policy, they are prohibited from assessing you any points for FMLA related absences. It is important, however, that an employee comply with any employer call-in procedure in order to utilize the protections afforded by the FMLA and WFMLA. In addition, an employer can identify particular individuals as key employees if they meet certain criteria. This has a practical effect of negating most FMLA protections.

As an employer, it is critical that you have an FMLA attorney that can provide guidance when an employee requires FMLA or WFMLA.

Just looking for some FMLA Basics – read our blog post!

Whistleblower

Wisconsin and Illinois employees are protected from retaliation in the workplace when they engage in conduct that is protected for public policy reasons. Various fedeal and state laws prohibit employers from taking an adverse employment action against an employee because he/she has reported certain statutorily defined wrongdoing in the workplace. Often times, these employees are called “whistleblowers.”

The United States Department of Labor, Occupational Safety and Health Administration (“OSHA”), is the federal agency responsible for enforcing whistleblower or anti-retaliation statutes. A non-exhaustive list of these statutes is as follows:

29 U.S.C. 218C Affordable Care Act (ACA), Section 1558
15 U.S.C. §2651 Asbestos Hazard Emergency Response Act (AHERA)
42 U.S.C. §7622 Clean Air Act (CAA)
42 U.S.C. §9610 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
12 U.S.C.A. §5567 Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
15 U.S.C. §2087 Consumer Product Safety Improvement Act (CPSIA)
42 U.S.C. §5851 Energy Reorganization Act (ERA)
21 U.S.C. 399d FDA Food Safety Modernization Act (FSMA), Section 402
49 U.S.C. §20109 Federal Railroad Safety Act (FRSA)
33 U.S.C. §1367 Federal Water Pollution Control Act (FWPCA)
46 U.S.C. §80507 International Safe Container Act (ISCA)
49 U.S.C. §30171 Moving Ahead for Progress in the 21st Century Act (MAP-21)
6 U.S.C. §1142 National Transit Systems Security Act (NTSSA)
29 U.S.C. §660 Occupational Safety and Health Act (OSH Act), Section 11(c)
49 U.S.C. §60129 Pipeline Safety Improvement Act (PSIA)
42 U.S.C. §300j-9(i) Safe Drinking Water Act (SDWA)
18 U.S.C.A. §1514A Sarbanes-Oxley Act (SOX)
46 U.S.C. §2114 Seaman’s Protection Act (SPA), as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111-281
42 U.S.C. §6971 Solid Waste Disposal Act (SWDA)
49 U.S.C. §31105 Surface Transportation Assistance Act (STAA)
15 U.S.C. §2622 Toxic Substances Control Act (TSCA)
49 U.S.C. §42121 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)

The federal False Claims Act and its state counterparts offer an effective means to redress corruption against government by stopping it, and rewarding whistleblowers for their information. Qui tam cases are a powerful way for whistleblowers to help the government stop many kinds of fraud – Medicare and Medicaid fraud, defense contractor fraud and numerous other types of fraud that impact the government financially – and recover billions that have been stolen from the U.S. Treasury and taxpayers.

Plaintiffs in Qui tam lawsuits are called relators. Relators are not only protected under the law from retaliation, but may be eligible to receive an award of anywhere from 15 to 30 percent of the funds recovered by the government. Courts have ruled that relators must be represented by legal counsel.

Once an individual has evidence of fraud against the government and decides to blow the whistle, that person needs to find a lawyer. The state and federal False Claims Acts contain “first to file” provisions that reward the early reporting of false claims. This creates what has been referred to as a “race to the courthouse.” Therefore, potential relators should not sit on valid claims, because others may beat them to it.

It is also important for relators to keep their information confidential until after the government has unsealed the case. A qui tam lawsuit is filed “under seal,” meaning that it is kept secret from everyone but the government to give the Justice Department time to investigate the allegations. Even the person or entity being accused of fraud is not told about the qui tam case. The False Claims Act states that a qui tam case will be sealed for 60 days, but courts generally extend the seal multiple times to give the government enough time to investigate the allegations to decide whether to join the case. Government investigations can take years. Often times, if the government joins or intervenes, the case is resolved through settlement negotiations rather than a trial.

If you have information concerning fraud committed against the government, it is critical that you contact an attorney with experience handling qui tam lawsuits. The attorneys at McDonald & Kloth, LLC have successfully represented qui tam clients individually and with government intervention. Our attorneys understand that success with qui tam cases are largely dependent on a thorough investigation prior to presenting the case to the government. If you or anyone you know has information about a fraud be perpetrating against the government, you should immediately contact McDonald & Kloth, LLC for a free initial consultation.

The Illinois Whistleblower Act, 740 ILCS 174, protects employees who disclose illegal conduct to government officials or refuse to participate in unlawful activities. An injured employee may seek a “make whole” remedy from the employer including reinstatement with seniority; back pay with interest; and compensation for “any damages sustained as a result of the violation, including litigation costs, expert witness fees, and reasonable attorney’s fees.”

The Illinois False Claims Act, 740 ILCS 175, protects every citizen who “blows the whistle” on corruption (i.e. unlawful conduct) in conducted by government officials and employees. A successful whistleblower may receive up to 30% of the amount recovered upon the conclusion of a successful whistleblower suit.

It is critical that you contact an attorney experienced in handling whistleblower cases prior to taking formal action. The attorneys at McDonald & Kloth, LLC have handled countless whistleblower cases in a number of forums, and – regardless of whether you are an employer or an employee – will gladly assist you with your whistleblower matter.