In a recent article on wisbar.org, the author analyzed the recent Wisconsin Supreme Court decision in which Mallery & Zimmerman attorneys Ron Stadler, Aaron Graf and Jon Sacks achieved an important victory for the client. In AllEnergy, et. al. v. Trempealeau County Environment & Land Use Committee, the Wisconsin Supreme Court renewed its commitment to existing law on certiorari review, deference to local administrative bodies making such decisions and the substantial evidence test used in reviewing such administrative decisions. Further, the Court rejected attempts to change Wisconsin law such as making an applicant entitled to a conditional use permit. As the author notes, the decision was certainly a splintered one with Justice Abrahamson authoring the lead opinion and being joined by Justice Ann Walsh Bradley. Justice Ziegler drafted a concurring opinion, which was joined by Chief Justice Roggensack, which agreed with the result but stated that she would have upheld the ELUC on narrower grounds without addressing the unnecessary constitutional issues. Finally, Justice Kelly drafted the dissent and was joined by Justices Gableman and Rebecca Bradley. In the dissent, Justice Kelly would have reversed the ELUC and remanded for additional hearing before the ELUC under new standards which Justice Kelly desired to adopt regarding certiorari review of conditional use permits.
The decision is not only interesting from the aspect of an important decision in the certiorari review and land use area, but it is also interesting to learn how the Justices, and especially the newer Justices, view such issues. This could certainly foreshadow future decisions on similar issues before the Supreme Court.
The full article can be found here.
On April 17, 2017, the United States District Court for the Eastern District of Wisconsin struck down an ordinance restricting the residency of convicted sex offenders in the Village of Pleasant Prairie (the “Village”). In Hoffman v. Village of Pleasant Prairie, No. 16-CV-697-JPS, 2017 WL 1380560 (E.D. Wis. Apr. 17, 2017), a group of convicted child sex offenders (“Plaintiffs”) challenged a Village ordinance (passed on April 18, 2016) regulating residency for sex offenders within its borders (the “Ordinance”). The federal Court granted summary judgment in favor of the Plaintiffs holding that the ordinance violated the Ex Post Facto Clause of the United States Constitution and violated Plaintiffs’ constitutional right to equal protection. Read More… “Wisconsin Federal District Court holds Village Cannot “Banish” Sex Offenders from Community”
On May 4, 2017, the Wisconsin Supreme Court held in Operton v. LIRC that Lela Operton was entitled to unemployment benefits after being fired by a Madison area Walgreens. The Court upheld the Court of Appeals which had ruled that the Labor and Industry Review Commission (“LIRC”) was incorrect to deny Operton unemployment benefits when it found that several cash-handling errors constituted substantial fault and warranted a denial of unemployment benefits. Read More… “Wisconsin Supreme Court Draws The Line On “Substantial Fault” For Unemployment Benefits”
Most employers are well aware that they must generally pay all non-exempt employees time and a half for all hours worked in excess of 40 hours in a workweek. Most employers are also well aware that in the private sector there is no ability to allow employees to earn comp time instead of overtime pay. The U.S. House of Representatives recently passed H.R.1180 (otherwise known as the Working Families Flexibility Act of 2017) which would change the comp time rules and make such options available in the private sector. Read More… “Important Change To Private Sector Comp Time Rules Possibly On The Horizon”
February and March saw big changes in special education jurisprudence. The Supreme Court recently issued two decisions that clarified aspects of the Individuals with Disabilities Act (IDEA). In February, the Court in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), developed a more clear and definitive test for determining whether exhaustion of administrative remedies is required before a plaintiff files a lawsuit in state or federal court. The Court issued another IDEA opinion on March 22, 2017. In Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), the Court changed the standard that schools must meet in order to comply with their substantive obligations under the IDEA to offer a disabled student a Free Appropriate Public Education (FAPE) through an Individualized Education Plan (IEP). Read More… “Big Changes in Special Education Law”
The number of employment claims filed each year is absolutely astounding. Some, of course, have merit while others are nothing more than meritless complaints of a jilted former employee. Unfortunately for employers, the systems in place in Wisconsin and elsewhere are set up in such a way that even frivolous claims can make it through the first several steps of the process – steps that can be expensive to defend. On the other hand, claims that have some merit can take years to work their way through the various steps in the state and federal systems. Because of its unique nature, deciding whether, when and how to settle an employment claim can be a complex undertaking. This article will examine and analyze the different considerations counsel, and the client, should undertake in evaluating such a decision. Read More… “Deciding Whether to Settle an Employment Claim”
On January 13, 2017, the United States Supreme Court granted certiorari in N.L.R.B. v. Murphy Oil USA, No. 16-308, Epic Systems Corp. v. Lewis, No. 16-285, and Ernst & Young LLP v. Morris, No. 16-300, consolidating those cases and agreeing to review the validity of class or collective action waivers in arbitration agreements under the National Labor Relations Act (NLRA) and the Federal Arbitration Act (FAA). The Supreme Court will ultimately resolve a federal circuit split over whether class action waivers in employment arbitration agreements are: (1) prohibited by the NLRA because such waivers violate employees’ right to engage in concerted activities; and (2) protected under the FAA. Recent Supreme Court nominee Judge Neil Gorsuch may play a determinative role in the Court’s decision, and the decision certainly will affect employers’ ability to minimize liability exposure. Read More… “Epic Systems Case on Class Action Waivers in Employment Arbitration Agreements Headed to U.S. Supreme Court”
A recent Wisconsin Court of Appeals decision, DJK 59 LLC v. City of Milwaukee, No. 2015AP2046 (Nov. 22, 2016), entitles the owners of Juneau Village Towers, an exclusively residential apartment complex located in downtown Milwaukee, to a refund from the City of Milwaukee for previously paid Business Improvement District (“BID”) assessments. Juneau Village Towers falls within BID No. 21 and the owners paid over $470,000.00 in BID assessments between the years 2005 and 2012. The decision confirms that BID assessments cannot be assessed against property that is used exclusively for residential purposes. Read More… “Residential Property Owner Entitled to Refund for Unlawful Business Improvement District Assessments”
On October 25, 2016, the Obama Administration released a “call to action” urging state policymakers to adopt best practices and enact reforms that aim to reduce the prevalence of non-compete agreements (i.e. restrictive covenants) in the employment context. While not legally binding or controlling in any way, the “call to action” may signal a continuing shift towards disfavoring non-competes or additional states banning them altogether.
Non-compete agreements are contracts under which an employee generally agrees not to enter into or start a similar profession or trade in competition against the employer. One of the principal reasons for enforcing a non-compete agreement is to prevent dissemination of trade secrets or other sensitive information and unfair competition. Because of these legitimate concerns, many employers require their employees to sign such contracts as a condition of employment to protect themselves. Read More… “Obama Administration Issues “Call of Action” to States to Curtail Non-Compete Agreements”
Under the Wisconsin Family and Medical Leave Act (“FMLA”), protected leave is typically only available to those with a serious health condition, those that are needed to care for a family member with a serious health condition or for the birth or adoption of a child. A new law recently passed in Wisconsin opens up similar protections for employees who serve as marrow or organ donors but that would not otherwise qualify for FMLA protected leave.
Earlier this year, 2015 Wisconsin Act 345 was passed and enacted by the state legislature. Act 345 creates an entirely new law (Section 103.11 of the Wisconsin Statutes) that grants employees who work for an employer with 50 or more employees entirely new rights. While it incorporates various provisions associated with FMLA leave under the Wisconsin Fair Employment Act into its own protections and enforcement, it is a separate form of protected leave. Read More… “Protected Leave Available to Employees for Marrow or Organ Donation”