WISCONSIN EMPLOYMENT LAW
An
Employee's Guide to the Language and Procedure
SKINNER AND ASSOCIATES
LAW OFFICES
Thank you for
considering Skinner and Associates to represent your interests.
Your satisfaction is
very important to us and forms the basis for our formal quality pledge:
·
To
provide the highest quality legal service to the clients we serve,
·
To
develop and maintain the highest personal and professional standards and
reputation, and
·
To
provide a quality professional work opportunity for attorneys and staff.
We welcome your feedback
at all times. This booklet has been
written to acquaint you, in general, with how we handle cases like yours. We hope it will be helpful to you.
Employment
Law Attorneys: Who are they? What do they do? How much will they charge?
Skinner and Associates
has experienced attorneys with expertise in employment law matters. We employ
skilled legal assistants to help you and your attorney with your file and to
assure you of the best professional representation. In addition to a skilled
and experienced staff, we utilize a complete professional research library,
computerized research facilities, and the latest in computer technology and
word processing equipment to help efficiently process your work.
One of our legal
assistants will be specifically assigned to assist you and your attorney in
handling your file. You are encouraged
to contact the legal assistant regarding your file if the attorney is not
available. A legal assistant is not a lawyer and is not permitted to give legal
advice. However, there are many questions that the legal assistant can answer
regarding your case. Questions calling for legal advice will be referred to
your attorney by the legal assistant.
What Will Your Lawyer Do?
Your lawyer will advise
you about the law and help you prepare and present your case. This may involve hiring or consulting with
other professionals such as private investigators, physicians, psychologists or
vocational
rehabilitation experts.
We
will keep you advised regarding the legal proceedings, give you our advice
regarding any options or decisions you have and answer any questions you have.
What Does It Cost?
Clients of Skinner and
Associates are charged for legal services on the basis of the time spent on the
file, the amount of money involved, the experience and expertise of the
attorney working on the file, the complexity of the issues presented and the
result obtained. Time records are maintained for all work on the file,
including telephone calls. These records are one of the factors used to
calculate your bill unless you have a different fee agreement with your
attorney.
The cost of an
employment matter is difficult to accurately predict in advance. The total cost depends on the amount of work
required of us, the number of witnesses and documents, the complexity of the
legal issues involved, and the attitude and behavior of our opponent.
During the course of our
representation, we may advance certain fees and costs for our clients. These
include such items as filing fees, process servers’ fees, telephone charges,
photocopies and travel expenses. In some cases, these costs may be quite
substantial when they include court reporter fees for depositions, witness
subpoena fees, private investigator
fees, psychologist fees, etc.
All clients are asked to
deposit a nonrefundable retainer fee or initial fee. In addition, we may ask
you to pay some or all of certain costs as your case proceeds. In all cases,
you will be billed for the costs we advance on your case, in addition to
attorney fees. In certain employment cases, a prevailing employee is entitled
to recovery of attorney fees and costs.
It is essential that we
have an agreement with you regarding fees and costs before any work is started.
If, for any reason, you do not have a complete understanding and agreement
regarding the fees to be paid, please discuss this with your lawyer
immediately.
Telephone Calls
The telephone is an
important tool for the ongoing communication between attorney and client. We welcome your calls with questions about
your case or with new information that we need. When your attorney is in court or meeting with another client, your
call will be referred to the legal assistant handling your case. Please be prepared to discuss the matter
completely with the legal assistant. If
it is essential that you talk personally to your attorney, leave a detailed
message and your attorney will return the call as soon as possible.
Settlement
At
various stages of the proceedings we will explore the possibility of
settlement. We may do this by informal contact with the other attorney or by a
formal settlement conference. Although we will initiate and participate in
settlement discussions, you are the only one that can agree on a settlement.
Settlement may not be possible or advisable until all facts and values have
been uncovered through the discovery process. When we have all the facts, we
will offer you our professional advice and recommendations for settlement based
on the law and our view of the case.
Facts About Employment Law
In Wisconsin, most
employment is employment at-will,
meaning that an employee may generally be discharged at any time for any
reason. Many employees think that if they have worked at a certain job for many
years and have had no negative performance reviews, they cannot be fired. This
is not true. In most cases, an employer has the right to terminate an employee
for almost any reason or, in fact, for no reason at all. Similarly, the
employee may choose to terminate his or her employment at any time and for any
reason.
However, there are some
specific situations which prevent an employer from terminating or otherwise
changing the terms or conditions of employment. They are set out below.
An employer may not
discharge an employee or otherwise affect the terms and conditions of
employment on the basis of age, race, creed, color, handicap, marital status,
sex, national origin, ancestry, sexual orientation, arrest record, conviction
record, lawful use of a product off work premises, or membership in the
national guard, state defense force or any reserve component of the armed
forces.
Employers sometimes give
reasons for decisions affecting your employment which appear to be legal — such
as downsizing, performance problems or other “acceptable” reasons. If the real
reason for the decision lies in one of the protected areas identified above,
you may have an employment discrimination claim. However, “having a hunch” and being
able to prove a case in court are two different things. That is why it is very
important to document remarks or other conduct which leads you to believe
discrimination exists.
Employment
discrimination takes many forms. For example, it may be that you were
terminated because of your age, or denied promotion because of your sex. Either
of these actions would constitute employment discrimination. Another form of
employment discrimination is allowing a sexually intimidating or harassing
environment to prevail after an employee has complained about it. An employer is required to provide all
employees with a work atmosphere free from such intimidation or harassment.
While it is generally
not the case, some employees do have a contract of employment with their
employer providing for a specific term of employment, or promising that an
employee will not be terminated unless good cause is shown. Employers who want
to be able to terminate employees freely are using such contracts less frequently.
Employees who are
members of a union have a collective
bargaining agreement which normally protects them from termination without
just cause.
Courts have interpreted
some employee handbooks as a form of written employment contract. This usually
happens where the handbook makes specific assurances of continued employment,
or provides for a program of progressive discipline. For example, if the
employer guarantees that an employee will receive a verbal and written warning
and a suspension prior to termination, the courts will normally require the
employer to follow through with those steps prior to termination. You should
read through your employee handbook and understand the terms of your
employment, even before retaining an attorney.
Sometimes, breach of
contract occurs when an employer verbally makes promises to the employee which
are not kept. An example would be an employee who is lured away from an
existing job to take employment with a new employer, only to be terminated a
short time later for no apparent reason. The best protection for employees in
these or similar circumstances is to obtain as much written information as possible from the employer or his/her
representative regarding any promises made.
Courts may also intervene
in an employment decision when the discipline or termination of an employee
violates public policy. Examples of
this would include an employee being terminated for filing a worker’s
compensation claim, for testifying against an employer in a court of law, or
for refusing to violate a law, regulation or statute when requested to do so by
the employer. In addition, it is illegal to fire or discriminate against an
employee for taking action the employee is legally required to take in the
interest of public policy. For example, a nurse cannot be fired or demoted for
reporting suspected abuse or neglect of a patient.
An employee is also
absolutely protected by statute from being reprimanded or discharged for
engaging in union activities.
Our courts strictly
construe employment issues to preserve the employment at-will status unless employment discrimination,
breach of contract or violation of public policy is clearly proven. You cannot
prove age discrimination merely by showing that you happened to be over the age
of 40 and were terminated. You must prove that the employer terminated you because of your age. Similarly, it is
not employment discrimination for a supervisor to terminate you simply because
s/he does not like you, or is “out to get you.”
If you cannot prove that
a prohibited basis was used in your adverse employment decision, you will not
be successful in proving employment discrimination.
The term “constructive
discharge” means that an employee quits as a result of working conditions no
reasonable person could or should have to endure. A court may interpret an
employee’s quitting as if s/he had actually been unjustly fired given the
unreasonable conditions under which the employee was working immediately before
quitting. In all situations, a “constructive discharge” question needs to be
determined based on the particular facts of each case. Therefore, it is not
wise to quit before getting competent legal advice.
State and Federal Laws
There are several state
and federal laws dealing with employment issues.
The more commonly used
Wisconsin state employment laws include:
Wisconsin Fair
Employment Act (WFEA)
Prohibits discrimination
in terms and conditions of employment on the basis of age, race, creed, color,
handicap, marital status, sex, national origin, ancestry, sexual orientation,
arrest record, conviction record, membership in the national guard, state
defense force, or any military reserve unit, or the use or nonuse of lawful
products off the employer’s premise during non-working hours. Applies to
employers who have one or more employees. (§ 111 Wis. Stats.)
Requires unpaid leave of
up to six weeks per year for the birth or adoption of a child, and up to two
weeks for a serious health condition of an employee or member of an employee’s
immediate family. Requires continuation of whatever health insurance was
provided to the employee before the leave. Job reinstatement rights are
protected. Applies to employers with 50 or more permanent employees. (§ 103.10
Wis. Stats.) (30 day statute of limitations)
Provides an employee
with the right of self organization and the right to form, join or assist labor
organizations; prohibits employers from interfering with an employee’s right to
engage in any such union related activities. Applies to any employer having one
or more employees. (Does not include the state or any political subdivision,
but these entities are covered by the State Employment Labor Relations Act,
which is similar in scope). (§ 111.01
Wis. Stats.) (One year statute of
limitations)
Requires payment of
overtime wages, sets maximum hours and minimum wages, requires payment of wages
to a terminated employee within the next regularly scheduled pay period,
requires employers to produce and/or copy personnel files if requested in
writing within seven business days. Applies to employers who have one or more
employees. (§ 103 Wis. Stats.)
There are also state
laws regarding worker’s compensation and unemployment compensation which are
beyond the scope of this guide.
The more commonly used
federal employment laws include:
Civil Rights Act of 1964
(Amended in 1991)
Prohibits discrimination
in terms and conditions of employment on the basis of race, sex, color,
national origin and religion. Applies to employers who have 15 or more
employees. (42 USC § 2001(e))
Age Discrimination in
Employment Act (ADEA)
Prohibits discrimination
in terms and conditions of employment on the basis of age. Protects persons
over the age of 40. Applies to employers who have 20 or more employees. (29 USC
§ 621)
Americans with
Disabilities Act (ADA)
Prohibits discrimination
in terms and conditions of employment on the basis of disability. Protects
persons who are disabled or who are perceived as being disabled, who can
perform the job with or without reasonable accommodation. Employers are
required to provide reasonable accommodation if requested. Applies to employers with 15 or more
employees. (42 USC § 12101)
Family and Medical Leave
Act (FMLA)
Requires unpaid leave of
up to twelve weeks per year for either the birth or adoption of a child, or for
a serious health condition of an employee or member of the employee’s immediate
family. Requires continuation of whatever health insurance was provided to the
employee before the leave. Job reinstatement rights are protected. Applies to
employers who have 50 or more employees, who can be employed at more than one
job site, as long as the sites are within 75 miles of each other. (29 USC § 2601) (Two year statute of
limitations; three years if willful)
Equal Pay Act (EPA)
Prohibits gender-based
wage discrimination for equal work. Applies to employers covered by the Fair
Labor Standards Act (which is generally any employer engaged in any type of
interstate activity). (29 USC §
206) (Two year statute of limitations;
three years if willful)
Procedure
The first thing
employees should do if they suspect they are being treated unfairly is to
request a copy of their personnel file. This request should be made in writing
and mailed to the employer by certified mail. The employer then has seven
business days within which to provide a copy of the file and can charge no more
than the actual copying charges. If an employer fails to honor this request,
the employer is subject to fines ranging from $10 to $100 per day for each day
of continued violation.
Once you have a copy of
your personnel file, bring the file and any employee handbook you have
received, to your next visit with your attorney.
Unless otherwise noted
above, discrimination claims, whether
state or federal, must be filed within 300 days of the date the
discriminatory action occurred. Most discrimination claims are filed with
the Equal Rights Division (ERD), a state agency, or the Equal Employment
Opportunity Commission (EEOC), a federal administrative agency. Wisconsin state
employee claims are filed with the Wisconsin Personnel Commission.
The
employer will be notified of your complaint, and an investigation is commenced.
The investigator from the administrative agency will contact those witnesses
you have named who can provide information concerning your claim. It is
important that witnesses know you have given their names to the administrative
agency so they are prepared and can respond favorably and truthfully. The
investigator normally sends named witnesses a questionnaire rather than
contacting them personally or by telephone. This stage of the process normally
takes many months and sometimes more than a year to complete. Your attorney
will keep you informed of all significant developments.
Once an investigation is
completed, the administrative agency will decide in writing whether or not
there is probable cause to believe discrimination has
occurred. If an initial determination of probable cause is issued, there will
be a conciliation period during which the parties are encouraged to settle the
matter. If settlement is not achieved, the case will be set for hearing. At the
hearing, we will present your case using witnesses and testimony to show why
you believe discrimination occurred. The employer will also use witnesses to
try to prove otherwise. These hearings are heard by an administrative law
judge, rather than a jury, and are less formal than a court trial. On the other
hand, if the investigator determines that there is no probable cause to believe
discrimination occurred, the employee may appeal and automatically has a right
to a hearing on the issue of probable cause. The investigation may also lead
you to decide to drop the matter because you most likely will not prevail at
hearing.
After your case has been
filed with an administrative agency, you have the right to move the case to
state or federal court in most circumstances. The advantage to doing this is
that it gives you the right to a jury trial and, in some cases, compensatory
and punitive damages. Some cases involve
claims under both state and federal law.
Claims involving breach of contract or violations of public policy are
normally brought in the Wisconsin court of the county in which the employer is
located. Employment discrimination claims under the Civil Rights Act or other
federal law may be presented in either a federal or Wisconsin court, and may be
heard by a jury. The decision as to whether your claim should be brought under
state or federal law will be made by you and your attorney after you have
discussed the matter thoroughly. A claim brought in state or federal court is
more formal than a claim before the Equal Rights Division, and is usually more
costly to pursue.
Collecting Information
In addition to the
information gathered from you, we will use several other methods to collect
information. We may employ private investigators or expert witnesses such as
vocational rehabilitation specialists. The law also provides an opportunity to
get information from your employer through a process called “discovery.”
“Discovery” gives us four basic tools to obtain information.
Interrogatories are
written questions directed to the other party regarding employment practices or
other relevant information. Interrogatories are used to obtain information in
preparation for trial and must be answered under oath by the party to whom they
are directed.
Depositions are
opportunities for an attorney to ask opposing parties oral questions and get
oral answers. The witness being deposed is under oath and the questions and
answers are recorded by a court reporter. A transcript is prepared which can be
used by the attorney at trial. If your deposition is being taken, it is
important that you confer with your attorney about your preparation for the
deposition because this is a very important step in your case. Your attorney
will want you to view a video tape about depositions and, in addition, will
discuss with you the facts of your case so that you are prepared to answer
questions completely and honestly at deposition.
A request to produce
documents is a legal request requiring a party to a lawsuit to produce
documents in his/her possession. Such documents may include wage statements,
notes kept by the employer, personnel policy manuals, etc.
A request for an
admission as to the truth of a matter relevant to your case may be used to
narrow the issues at the time of trial. For example, we may ask the employer to
admit that its upper management work force consists solely of males under the
age of 40, thus eliminating the need to produce witnesses to testify to this at
trial.
Your Involvement
The
other side also has a right to “discovery,” so it is likely that you will also
be asked to answer questions and produce documents.
For claims brought in
state or federal court, you and your attorney will do most of the investigation
rather than an administrative agency investigator. As such, discovery may
commence immediately, meaning that you may have your deposition taken and your
attorney may take the depositions of the employer and other witnesses.
Time
Whether your case is
before an administrative agency or a state or federal court, it is likely to
take months, at a minimum, and perhaps years before your case is heard by a
hearing officer, court or jury. During this time, it is best to attempt to get
on with your life as best you can. This means continuing to look for work and
documenting all efforts made. While it is not necessary to take a job requiring
none of the skills that you possess, you may not unreasonably refuse a job
offer simply to “get back at the employer.” You will be far better off keeping
busy and getting back in the work force as quickly as possible. This is true
even if the salary you receive from your new job might reduce some of the damages
you receive from the employer you are suing.
It is important to not
only document your search for work, but also statements that are made to you,
feelings that you may have, or other facts that are relevant to the case. If
you do not document, you may forget important details by the time you are asked
to testify about them. For this same reason, your attorney may take written
statements from favorable witnesses.
Witnesses
Those
witnesses who can support your story are extremely important to your case.
However, the truth of the matter is that in employment cases, witnesses are
often reluctant to testify for fear of losing their own job. While it is
difficult not to take this personally, you must be prepared for the possibility
of witnesses failing to back up your claim. On the other hand, witnesses who
tell you they don’t want to be involved, will
often tell the truth when faced with a subpoena.
We will attempt to
assure your witnesses that their employer is prohibited from retaliating
against them in any way for testifying against the employer.
It is also possible that
by the time your case comes to trial, some witnesses will no longer be employed
by the same employer, and will therefore be more willing to speak freely about
what really happened. For that reason, it is very important to keep track of
your witnesses’ whereabouts, even if they are reluctant to be involved.
Damages
What
you can hope to recover financially from an employment case varies with the
type of claim you are making. In successful employment discrimination cases
filed with the Equal Rights Division, the Personnel Commission or the EEOC, you
will be entitled to back pay with interest, job reinstatement and attorney
fees. If the employment discrimination was a refusal to promote you, the
employer may be ordered to promote you, or to pay the salary you would have
been earning had you received the promotion, together with back pay and
attorney fees.
If your claim is made
under the Civil Rights Act, ADA, ADEA or other federal law, you are entitled,
in many cases, to a jury trial. A successful claimant can be awarded
liquidated, compensatory and/or punitive damages in addition to the other
damages mentioned. Compensatory damages may include pain and suffering or
mental anguish.
Generally,
successful claims for breach of contract or for employment decisions made in
violation of public policy will result in you being put back in the position
you would have been in if the breach of contract or violation of public policy
hadn’t occurred. For example, you might
receive job reinstatement with back pay, or a sum of money to compensate you
for the losses you have incurred because of the unlawful conduct. These kinds
of claims, however, do not entitle you to attorney fees, as in employment discrimination
claims.
Concluding Your Case
If your case does not
result in a settlement of all issues prior to trial, your case will be decided
by the court or a jury, and an order (judgment) will be rendered.
If, prior to trial, a
settlement is agreed upon by both sides, the terms of the settlement will be
reduced to writing and signed by all parties. You will be asked to sign a
release of all claims which, in effect, releases the employer from any and all
claims you may have against the employer whether known or unknown. In other
words, once you sign a release, you may no longer sue the employer for any
claims related to that employment. The exception to this would be if you
continued to be employed by that employer and future conduct arose which was
unlawful, such as the employer retaliating against you for suing him/her. It is
important that you understand all the documents that you are asked to sign, and
agreements into which you enter. All such documents should be carefully
reviewed by your attorney before you sign them.
As we proceed with your
case, please feel free to discuss any and all questions or comments with your
attorney and/or legal assistant assigned to your case. Your complete and
informed involvement is vital to the satisfactory resolution of your case.
Copyright © 2000-2001
Skinner and Associates
All Rights Reserved
Revised 8/2000