Big Changes in Special Education Law

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”

Deciding Whether to Settle an Employment Claim

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”

Epic Systems Case on Class Action Waivers in Employment Arbitration Agreements Headed to U.S. Supreme Court

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”

Residential Property Owner Entitled to Refund for Unlawful Business Improvement District Assessments

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”

Obama Administration Issues “Call of Action” to States to Curtail Non-Compete Agreements

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”

Protected Leave Available to Employees for Marrow or Organ Donation

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”

Failure to Respond to State Agency Mandates Dismissal

Defense counsel in employment actions before the Wisconsin Equal Rights Division (“ERD”) routinely encounter situations where a complainant is difficult to communicate with in terms of discovery, setting depositions, or the like.  Often, counsel has no choice but to make numerous, repeated attempts before seeking dismissal as the ERD tends to bend over backwards for complainants before dismissing the case.  Even after seeking dismissal, the ERD often will grant a complainant several additional opportunities to make things right.  However, there may be an alternative dismissal tool that defense counsel can utilize to more effectively seek dismissal of a non-cooperative or non-responsive complainant. Read More… “Failure to Respond to State Agency Mandates Dismissal”

Court of Appeals Determines The Fate Of Overbroad Non-Solicitation Agreements

Last week, the District II Wisconsin Court of Appeals held that an agreement that restricts a former employee from encouraging other employees to leave their jobs, generally referred to as a “non-solicitation” agreement, was unenforceable.  The Manitowoc Company Inc. v. Lanning, 2015AP1530 (Aug. 17, 2016).  The decision calls into question what is a rather typical provision in such employer-employee agreements. Read More… “Court of Appeals Determines The Fate Of Overbroad Non-Solicitation Agreements”

Remembering the Public Policy Exception to the Employment at Will Doctrine

It is often said by employers who operate in at-will employment states that they can terminate an employee for any reason, or no reason at all, so long as they do not do so because of a protected characteristic (race, sex, disability, etc.).  While generally true in most circumstances, a recent decision from the Fifth Circuit provides an excellent reminder that there are limited exceptions to this rule that are lurking on the periphery.  Read More… “Remembering the Public Policy Exception to the Employment at Will Doctrine”

For Wisconsin Businesses In Need of Capital “Crowdfunding” Is An Option

“Crowdfunding:” The practice of raising capital from a large number of individuals by accepting funding in small dollar amounts from each contributor.  Certainly the idea of crowdfunding has been around for ages, but with advances in technology crowdfunding has become a popular alternative way to fund a project or business venture, which can be especially helpful for small businesses.  Websites like Kickstarter and Indiegogo are online crowdfunding platforms for creative projects where investors can pledge money to make projects happen.  The drawback of such websites, however, is that the project creators keep 100% ownership of their work and the websites cannot be used to offer financial returns or equity in a company.  In order to actually offer financial returns or equity in a company, an offering by the company must comply with over 585 pages of applicable SEC rules, which can be cost prohibitive for many small businesses. Read More… “For Wisconsin Businesses In Need of Capital “Crowdfunding” Is An Option”