von Briesen Health Law Blog

As several of our clients have encountered, recently employees and their counsel have argued that a woman can choose to take her federal Family and Medical Leave Act (“FMLA”) leave and her Wisconsin FMLA leave consecutively. The situation most often presents itself when a woman requests time off during pregnancy, before the birth of a child, but wants to “save” her six weeks of Wisconsin FMLA leave to use upon the birth of her child. In one case in which von Briesen & Roper represented the employer, the Wisconsin Department of Workforce Development’s Equal Rights Division (“ERD”) advised an employee that she could “stack” her state and federal FMLA leave in this way. In fact, the ERD found probable cause to believe there had been a violation of the Wisconsin FMLA when an employer told an employee that her state and federal FMLA pregnancy leaves would run concurrently when taken in the 16 weeks before the birth of her child. Our client stood by its position that the federal and state FMLA laws run concurrently when the leave qualifies for protection under both laws and went to a hearing on the merits. Read more…

On October 7, 2009, Interim Final Rules were issued to implement certain sections of the Genetic Information Nondiscrimination Act (“GINA”). These rules prohibit (i) the use of genetic information for increasing the group premiums or contribution amounts based on genetic information; (ii) requesting an individual or family member to undergo genetic testing, except in limited circumstances; or (iii) requesting genetic information in connection with enrollment or for “underwriting purposes,” which includes offering benefits or rewards for completing a health risk assessment (“HRA”). Read more…

Wisconsin courts have frequently found that if any restrictive covenant within an agreement was unlawful, the entire agreement was unenforceable. However, on July 14, 2009, in Star Direct, Inc. v. Dal Pra, the Wisconsin Supreme Court issued a decision that could increase the enforceability of restrictive covenants in Wisconsin. The Court held that separate covenants within one agreement may be divisible and separately enforceable, even if one or more of the covenants are found to be unenforceable. Read more…

Effective July 24, 2009, both the federal and Wisconsin minimum wage for adult employees will increase to $7.25 per hour. The Wisconsin minimum wage for tipped employees will remain $2.33, and the Wisconsin minimum wage will remain $5.90 for employees under age 20 who are in their first 90 consecutive calendar days of employment with a particular employer. The federal minimum wages for tipped and youth employees are lower ($2.13 and $4.25, respectively), but Wisconsin employers are required to comply with Wisconsin’s higher minimum wage requirements for these groups.

The Wisconsin Legislature is currently considering a bill that would provide for yearly increases to the state minimum wage rate in connection with the cost of inflation. This bill, 2009 Senate Bill 1, was passed by the Wisconsin Senate on February 10, 2009 and it has been in front of the Assembly’s Committee on Labor since that time. We will provide further updates if this bill is passed.