New Employee Protections in Wisconsin for Reporting Suspected Child Abuse

As of December 9, 2011, new changes in Wisconsin law provide greater protection to employees that report suspected child abuse. 2011 Wisconsin Act 81 enlarged both the scope of employees protected and the nature of adverse employment actions that employers are prohibited to take against an employee in Wisconsin for reporting.

Wisconsin law at Wis. Stat. 48.981 governs the reporting of suspected child abuse. The identity of the reporter is kept confidential.

The law makes reporting mandatory for employees in certain occupations such as physicians, nurses, dentists, social workers, school employees including teachers and administrators, school counselors, child care workers, EMTs, police and other law enforcement officers, among others. Any of these employees that have “reasonable cause to suspect that a child seen by the person in the course of professional duties has been abused or neglected or who has reason to believe that a child seen by the person in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur shall … report as provided in sub. (3).” There are exceptions noted at sub. (2m). Failing to report when it is mandatory can subject the person to a fine of up to $1,000 or imprisonment for up to 6 months or both.

All other employees may report suspected child abuse, but doing so in not mandatory. Permissive reporting still provides the same protections as mandatory reporters.

An employee reporting suspected abuse who has a good faith belief of abuse is immune from liability for making such a report if the investigation does not find abuse occurred. There are a few exceptions, for example, the perpetrator cannot self report and still be immune.

The protection provided to an employee that reports suspected child abuse is under Section 48.981(2)(e). This section prohibits an employer from discharging an employee from employment for making either a mandatory or permissive report. Act 81 amends this section to now include the additional protections from “discipline or otherwise discriminated against in regard to employment, or threatened with any such treatment for doing so.” It appears to essentially prohibit any adverse employment action in retaliation for making mandatory or permissive reports of suspected child abuse.

Wisconsin Family Medical Leave Includes Domestic Partner

As of June 29, 2009, the Wisconsin Family and Medical Leave Act (WFMLA) includes protecting employees that need leave for a domestic partner. The WFMLA is at sec. 103.10 of the Wisconsin Statutes. This law provides additional protections not found in the Federal FMLA.

Wisconsin has a provision for domestic partners to register to qualify for other benefits, but this is not required for WFMLA coverage.

The law provides, among other protections, up to two weeks of leave for an employee to care for the domestic partner’s serious health condition, but not for a child of the domestic partner. To be covered, the employee must work for a pubic employer or a private employer that employs 50 or more permanent employees. Also, the employee must have been employed for 52 consecutive weeks or more and have worked at least 1,000 hours in the preceding 52 week period.

Failure to provide the requested leave is a violation of the WFMLA, as is failure to restore an employee to his or her position or an equivalent one following WFMLA leave.

Violations of the WFMLA are enforced by the Wisconsin Equal Rights Division by filing a complaint within 30 days of the violation or when the employee reasonably learns of the violation, whichever is later.

Disclaimer. The information in this and all other posts on this website are not meant as legal advice, but as informative, educational material of a general nature. Legal advice depends on the particular facts and circumstances, and can only be given upon a discussion of the facts and circumstances between an attorney and client. Do note rely on this information when making legal decisions, and you should consider seeking the advice of a competent attorney licensed to practice law in your jurisdiction.

Verbal Complaint About Unpaid Overtime & Minimum Wages Are Protected by the Fair Labor Standards Act

The U.S. Supreme Court decided that both verbal and written complaints by an employee about violations of the Fair Labor Standards Act (“FLSA”) are considered protected conduct under the anti-retaliation provisions of the law. These complaints typically relate to an employee not getting paid overtime or not getting paid anything for hours worked. The decision is Kasten v. Saint-Gobain Plastics Corporation, March 22, 2011.

The decision was based on the following language from the FLSA, Sec. 215(a)(3):

[An employer may not] discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee.

Lower-level Supervisor’s Discriminatory Motive Can Violate Civil Rights

On March 1st, 2011, the U.S. Supreme Court decided that a lower-level supervisor’s discriminatory motive in proposing disciplinary measures against an employee can form the basis for liability under the anti-discrimination laws in employment like Title VII of the Civil Rights Act of 1964 and the Uniformed Services Employment and Reemployment Act of 1994 ( USERRA ). This is known as a Cat’s Paw theory of liability for employment discrimination, as the lower-level supervisor proposes disciplinary action against an employee for an improper motive but the decision-maker may not have a discriminatory motive but relies upon the lower-level supervisor’s recommendation. While the actual decision-maker lacks a discriminatory motive, the decision is still tainted by the lower-level supervisor’s discriminatory motive. As long as the lower-level supervisor’s act, which was motivated by an unlawful discriminatory motive, is the proximate cause of the adverse action, like termination or a suspension, then the employer may be held liable for a violation.

This analysis can also apply to make discriminatory performance reviews that result in adverse action like termination, suspension, failing to promote, actionable where the reviewing supervisor gives negative remarks out of an unlawful discriminatory motive.

In Staub, the issue was related to an employee’s military leave, and the decision was made under the USERRA law, but the Supreme Court also discussed how the law would be applied in other areas of employment discrimination claims.

New Whistle-blower Protection in Food Safety Bill S 510

The U.S. Senate passed a bill on November 30, 2010, that passed into law will impose stricter food safety standards and more authority to the Food & Drug Administration to regulate tainted food. Included in the Food Safety Modernization Act, Senate Bill 510, at Section 402, are protections for employees of an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food. The protections of the proposed law will protect an employee that has:

  1. Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any order, rule, regulation, standard, or ban under this Act, or any order, rule, regulation, standard, or ban under this Act;
  2. Testified or is about to testify in a proceeding concerning such violation;
  3. Assisted or participated or is about to assist or participate in such a proceeding; or
  4. Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act, or any order, rule, regulation, standard, or ban under this Act.

Where the employee has made one of the protected disclosures, the employer may not in any manner discriminate against the employee with respect to the compensation, terms, conditions or other privileges of employment. This provision will likely include protection against adverse actions similar to other non-retaliation laws which prohibit termination of employment, suspension, demotion, pay cuts, denial of promotion, rejection of employment upon application, and the like when such actions are motivated in substantial part by the protected disclosure.

The remedies provided include injunctive relief (an order to stop the unlawful retaliation), reinstatement, back pay with interest, special damages, attorney’s fees, litigation costs, and expert witness fees.

The procedure to file a complaint for a violation of this proposed law requires filing with the Occupational Safety and Health Administration (OSHA) within 180 days of the retaliatory act. OSHA must then conduct an investigation and can order relief. The OSHA order is then subject to appeal by either party to an administrative law judge with the Department of Labor, whose order can then be appealed to an appeals review board, whose order can then be appealed to the federal district courts.

The House of Representatives passed a similar bill earlier this year, H.R. 2749. The two bills must now be reconciled and voted on again. The consolidated bill should pass in 2011.

Employer Use of Credit Reports in Hiring Under Review by States

The Wall Street Journal reports today, October 21, 2010, that the use of credit reports or credit histories of job applicants, "a common practice among employers– is coming under fire." Employer Credit Checks on Job Seekers Draw Scrutiny, by Sarah Murray, WSJ_Article_Link. Employers claim that the use of credit reports in hiring is necessary to "evaluate candidates and protect against fraud." One of the underlying concerns in the use of credit reports for job applicants, the Journal reports, "is that poor credit could become a barrier to landing a job." Another concern is that the use of credit reports has the potential for discriminatory impact on hiring such that the Equal Employment Opportunity Commission held a hearing on October 20, 2010, to listen to testimony from advocates on both sides of this issue. Chi Chi Wu, counsel for the National Consumer Law Center, testified that the practice "is both harmful and unfair to American workers."

Although proponents of using credit reports for employment contend that these reports "are an important screening tool for employers intend to be used sparingly," the Journal reports that a study conducted by the Society for Human Resource Management "showed 60% of employers used credit checks to that job candidates. Of those, 13% use them for all candidates."

My own comments on the issue raised in this article is that whether or not you think credit history should be used for evaluating job applicants, it is important for all of us to ensure our credit reports are accurate. Inaccurate, negative information on credit reports can impact you in so many ways, we should all take advantage of the federal law that requires national consumer reporting agencies such as Equifax, Experian and Trans Union to provide a consumer his or her own credit report upon request for free. We are all entitled to this free report from each agency once in every 12 month period. You can order your free report for the website established by order of the Federal Trade Commission act www.annualcreditreport.com.

I would also note that in the 2009-2010 legislative session for Wisconsin, a bill was proposed to prohibit discrimination in employment based on one’s credit history with limited exceptions for certain types of jobs. Unfortunately, the bill never made it to the legislative floor. Hopefully, the building reintroduced in the 2010-2011 session.

President Obama Signs USERRA Amendments into Law Oct 13, 2010

According to the White House, the President signed H.R. 3219, the Veterans’ Benefits Act of 2010, on October 13, 2010. The law amends the USERRA, making changes in several veterans’ affairs programs and benefits including: (1) insurance; (2) disability compensation and pension; (3) education, employment, and small business; (4) housing and homeless veterans’ programs; (5) memorial affairs; (6) civil relief issues; and (7) construction. The "employment" benefits are the USERRA amendments.

What You Can Do If You Suspect Your Employment Rights as a Servicemember or Veteran are Violated

If a servicemember’s or a veteran’s rights under the USERRA law are violated, remedies may flow from two different processes. The first is the administrative route (handled by the United States Department of Labor, VETS). The second is the litigation route (handled by private litigation initiated by the servicemember/veteran or his or her attorney in the courts. Alternatively, the U.S. Attorney General or the Office of Special Counsel may file litigation on behalf of the servicemember or veteran. Remedies may differ depending on which route is chosen.

Remedies available through the administrative route can include:

  • Return to a job
  • Back pay
  • Lost benefits
  • Corrected personnel files
  • Lost promotional opportunities
  • Retroactive seniority
  • Pension adjustments
  • Restored vacation

If an individual is claiming entitlement to employment rights or benefits or reemployment rights or benefits and alleges that an employer has failed or refused, or is about to fail or refuse, to comply with the Act, the individual may file a complaint with VETS or initiate a private legal action in a court of law (see § 1002.303). A complaint may be filed with VETS either in writing, using VETS Form 1010, or electronically, using VETS Form e1010 (instructions and the forms can be accessed at http://www.dol.gov/elaws/vets/userra/1010.asp). A complaint must include the name and address of the employer, a summary of the basis for the complaint, and a request for relief.

Filing a complaint with VETS is not required before pursuing a claim in the courts.

The courts can require the employer to comply with the law and restore all compensation referred to above. Where violation is considered willful the court may double any amount due as liquidated damages. The court may NOT, however, impose any punitive damages under USERRA. See 20 CFR Part 1002.312 and 20 CFR Part 1002.313.

While the USERRA itself does not state a time limit in which one must file an administrative complaint or file a lawsuit to enforce these rights, some courts impose limitations based on other laws. One court has said that the claim must be filed within 4 years, while others have considered whether the delay in time has caused such prejudice to the employer that the claim must be dismissed. The point taken should be that you should not delay in taking action to enforce your rights or you could lose these important rights and remedies.

U.S. Congress Passes Anti-Wage Discrimination Act for Veterans and Servicemembers

The Federal Congress passed important amendments to the Uniformed Services Employment and Restoration Rights Act (“USERRA”) that will benefit veterans and current servicemembers in private and public employment outside the armed forces. The Veterans’ Benefits Act of 2010 (H.R. 3219) ("VBA"), among other things, would clarify that USERRA prohibits wage discrimination against veterans and current servicemembers. The measure passed the U.S. Senate on September 28th, 2010, and the U.S. House of Representatives on September 29th. President Obama, who co-sponsored bills containing these amendments when he was a senator, is expected to sign the measure.

USERRA is intended to encourage non-career uniformed service so that America can enjoy the protection of those services, staffed by qualified people, while maintaining a balance with the needs of private and public employers who also depend on these same individuals.

Employees Must Comply with Employer Leave Policies Even When Leave is Protected by the Family & Medical Leave Act (FMLA)

The Seventh Circuit Court of Appeals, a Federal court overseeing the Federal trial courts in Wisconsin, Illinois and Indiana, confirmed a trial court’s decision that threw out an employee’s claim that the employer violated her FMLA rights when it terminated her employment when she was on leave for a serious health condition. See Brown v. Automotive Compenents Holdings LLC, 7th Cir., Sept. 8, 2010. The employer terminated her employment because she did not comply with the employer’s leave policies which required her to submit a particular medical form within a specific period of time. The employee was actually on medical leave that expired, and she needed to extend the leave to cover additional time. The employee did not respond to the employer’s requests, and in fact did not pick up certified letters the employer sent her that requested her to comply with its policies. The Federal court found that the employer’s policies did not conflict with the FMLA, so the employer could terminate the employee for not complying with these policies. Moral of the story for employees is that you must be aware of your employer’s policies and comply with them if they do not contradict the FMLA. Also, don’t ignore certified mail from your employer when you are on leave. By complying with the employer’s request for a medical certification, which it appeared the employee could have done, she would likely have saved her job at least at this juncture. Perhaps in this case, the employee who suffered from depression at the time may have found it difficult to respond at all due to the depression, but that issue did not seem to be a factor in the arguments.

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