A Cautionary Tale: Hesitate Before Accessing Employees’ Personal Email Accounts

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”

Voluntary Receivership: An Overlooked Option for Obtaining a Going Concern Premium in a Business Sale

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”

Handscanners, the Mark of the Beast and Religious Accommodations

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”

Mortgage Servicers Beware of Possible Sanctions in Chapter 13 Bankruptcies

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”

Wisconsin Supreme Court Upholds Decision Of Local Body Denying Permit For Sand Mine

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.

If you have any questions regarding this post, please contact its author, Aaron Graf, at agraf@mzmilw.com.

Wisconsin Federal District Court holds Village Cannot “Banish” Sex Offenders from Community

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”

Wisconsin Supreme Court Draws The Line On “Substantial Fault” For Unemployment Benefits

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”

Important Change To Private Sector Comp Time Rules Possibly On The Horizon

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”

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”