Employers, for far too long, have been left to guess how long of an unpaid leave they must grant their employees as a reasonable accommodation for a disability under the Americans with Disabilities Act (ADA). While there had been prior decisions that provided some guidance, it seemed every time there appeared to be some basis to figure out ‘how long was too long,’ a contrary decision would come down due to the vague and speculative nature of these circumstances. In Severson v. Heartland Woodcraft, Inc., 2017 WL 4160849 (7th Cir. Sept. 20, 2017), the Seventh Circuit provided some finality to the issue (hopefully). Read More… “How Long Is Too Long For An Unpaid Leave of Absence As A Reasonable Accommodation?”
A friend, who is a supervisor in a company, shared with me that she was “afraid to care” when it came to the employees she encounters on a daily basis. She felt that knowing any personal information about her subordinates – whether it be how and ill family member was doing or what he or she did the past weekend – would only lead to knowledge that could invite or support a future claim against the company. This struggle between wanting to develop professional, interpersonal relationships with subordinates and the fear of providing ammunition for a future discrimination claim is not an uncommon one amongst supervisors. It struck me as a sad commentary on what the exponential growth of lawsuits in the employment sector has done to the important interpersonal and professional relationships in the workplace. Read More… “Balancing Humanity and Liability in the Workplace”
On August 25, 2017, the Seventh Circuit Court of Appeals held that a settlement agreement entered into between a putative class of consumers and Subway was “utterly worthless” and reversed and remanded the District Court’s Order approving that settlement. The class had alleged that Subway’s famous Footlong sandwiches often came up short. Read More… “Five Dollars for a Not-Quite Foot Long: 7th Circuit Tosses Subway Class Action Settlement”
On September 20th, the Wisconsin Supreme Court will hear oral arguments in Movrich v. Lobermeier, 372 Wis. 2d 724, 889, N.W.2d 454, 2016 WI App 90 (2016). This case puts at odds two revered values: the public trust doctrine and the right of alienation by private property owners. The Wisconsin Court of Appeals found that the public trust doctrine prevailed over the private property owner’s rights. Read More… “Wisconsin Supreme Court Prepares to Weigh Private Rights, Riparian Rights, and the Public Trust Doctrine”
A recent Federal District Court decision highlights the pitfalls of accessing a former employee’s personal Gmail account. Employers should be aware of the risks of accessing such information even when they have a legitimate business reason for accessing it. Read More… “A Cautionary Tale: Hesitate Before Accessing Employees’ Personal Email Accounts”
Many Wisconsin business advisors fail to consider using a receivership under Wisconsin’s Chapter 128 as a tool for selling a going concern business. Yet, in many instances, it is the optimal method for such a sale.
For the past 15 to 20 years, Wisconsin lenders have used Chapter 128 receiverships to sell going concern businesses. A Lender, however, may only compel such a receivership when it can demonstrate that the borrower is insolvent on a modified balance sheet basis.
In contrast, any business may, at any time, voluntarily subject itself to a Chapter 128 receivership. There is no insolvency requirement. Read More… “Voluntary Receivership: An Overlooked Option for Obtaining a Going Concern Premium in a Business Sale”
A recent decision by the Fourth Circuit Court of Appeals (covering Maryland, North Carolina, South Carolina, Virginia and West Virginia) provides an excellent reminder about the tricky nature of religious accommodation requests. Employers should remember that no request, no matter how strange sounding, should be discounted and that every single request should result in an analysis of whether a reasonable accommodation exists. Had the employer followed these simple rules, it could have utilized an available, cost-free accommodation and avoided what likely amounted to close to nearly $1 million in defense costs and damages. Read More… “Handscanners, the Mark of the Beast and Religious Accommodations”
Residential mortgage servicers should take notice. A recent case from the U.S. Bankruptcy Court for the District of Vermont handed down what may be the first instance of punitive sanctions under Federal Bankruptcy Rule of Procedure 3002.1. The Court levied a $375,000 sanction to a mortgage servicer for its failure to comply with Rule 3002.1’s notice requirements despite the court’s repeated instructions to do so. This rule could spur similar cases for violations of Rule 3002.1, especially for repeat offenders. Read More… “Mortgage Servicers Beware of Possible Sanctions in Chapter 13 Bankruptcies”
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”