human resources legal update - gma shrm may/human resources... · human resources legal update 2017...

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©Boardman & Clark LLP 2017

HUMAN RESOURCES LEGAL UPDATE

2017 Annual GMA SHRM Human Capital Conference

Alliant Energy Center Madison, Wisconsin

May 16, 2017

Attorney Jennifer S. Mirus Boardman & Clark LLP

One South Pinckney Street, Fourth Floor P.O. Box 927

Madison, Wisconsin 53701-0927 (608) 283-1799

[email protected] I. THE BIG PICTURE.

A. The U.S. Congress has not passed major employment-related legislation since the Affordable Care Act in 2010.

B. The Department of Labor (“DOL”), Equal Employment Opportunities

Commission (“EEOC”) and National Labor Relations Board (“NLRB”) were active in implementing and enforcing new rules in their respective jurisdictions.

C. Courts cases both on the state and federal level broadened protections for

employees in many areas. D. State legislatures were active in passing new laws addressing minimum wage,

paid sick leave, the use of background checks and anti-discrimination measures. E. We can reasonably expect that there will not be new employment-related

legislation in the next several years. F. It is expected that the DOL, EEOC and NLRB may roll back and/or take a less

aggressive approach to enforcement of some of the more employee-protective measures of the last several years.

G. State legislatures in various areas may remain active in increasing employee

protections.

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II. OVERTIME EXEMPTION RULES. A. Status of the DOL Overtime Exemption Rules.

1. The Department of Labor (“DOL”) overtime exemption rule was to go into effect December 1, 2016. On November 22, 2016, a federal district court judge in Texas placed a temporary injunction on the rule nationwide, preventing it from taking effect.

2. For now, the rule's implementation and enforcement are on hold. The matter has been appealed to the 5th Circuit Court of Appeals, and the DOL is currently scheduled to file its brief in the case by June 30.

3. There are signs that the DOL under the new presidential administration (and newly confirmed Secretary Alexander Acosta) may no longer push for the implementation of the rule as it was written. There are some indications that instead, the administration may move to introduce a revised rule that would propose a lower the minimum salary threshold.

B. Possible Changes to Wisconsin’s Overtime Exemption Rules.

1. The Department of Workforce Development submitted a scope statement to the Governor’s office to revise certain of Wisconsin’s overtime exemption rules, including changes that would essentially bring the state’s executive, administrative and professional exemption duties tests and outside sales exemption in line with federal law.

2. Such changes would generally benefit employers, as Wisconsin’s

exemption rules include bright line requirements that are stricter than the standards under the Fair Labor Standards Act.

III. WISCONSIN LEGISLATIVE UPDATE.

A. The Governor’s budget bill proposes the elimination of the Labor and Industry

Review Commission (“LIRC”).

1. LIRC is an independent Wisconsin administrative agency established to provide a fair and impartial review of the employment law decisions of administrative law judges in cases involving Unemployment Insurance (UI), Worker’s Compensation (WC), and Equal Rights (ER).

2. LIRC’s decisions have generally provided consistency, stability, and

integrity to the programs for the employers, employees, insurers, and citizens of the State of Wisconsin.

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3. How would administrative appeals work without LIRC?

a. Unemployment Insurance Appeals. In lieu of appeals to LIRC, the Department of Workforce Development (DWD) Unemployment Insurance Division Administrator would review DWD’s administrative decisions related to Unemployment Insurance.

b. Equal Rights Appeals. In lieu of appeals to LIRC, the DWD Equal

Rights Division Administrator would review DWD’s administrative decisions related to equal rights.

c. Worker’s Compensation Appeals. In lieu of appeals to LIRC, the

Division of Hearings and Appeals (DHA) Administrator (within the Department of Administration) would review administrative decisions related to worker’s compensation.

d. The effect of these changes would be that the Administrator of the

same agency that makes the initial administrative decision would be reviewing those decisions, instead of the independent LIRC.

4. What are the possible consequences of these changes?

a. No procedures for Administrator review are provided in the budget

bill. Rather, the affected Departments are granted the authority to issue emergency rules as needed to provide for Administrator review. This could create uncertainty regarding, among other issues, the scope and timelines of this review.

b. LIRC decisions helped to provide statewide consistency in the law.

Depending on the scope of the Administrator review procedures, courts may hesitate to afford much deference to these Administrator reviews. By contrast, LIRC opinions are granted considerable deference by courts. Court cases may have to reach the Wisconsin Court of Appeals before statewide legal consistency is achieved.

c. If more cases are appealed to state circuit court and the court of

appeals, this would increase the cost of proceedings under these laws.

d. Due process concerns? The Division Administrator would be

reviewing the decisions of his/her own Division’s administrative law judges. It is left to the emergency rules to determine how independent these Administrator reviews would be.

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5. Assuming no changes to the budget, the Division Administrators will take over Administrator review effective July 1 of this year. However, as of the date of this presentation, there does not appear to be support for the move to eliminate LIRC.

B. The budget bill also proposes to permit statutory offers of settlement in the

employment arena.

1. A statutory offer of settlement is a specific process by which parties can make offers of settlement that, if not accepted by the other party, can have significant financial consequences depending on liability and damages.

2. To this point, statutory offers of settlement have been permitted in many

areas of civil litigation in Wisconsin, but not in agency proceedings for employment claims.

3. The proposed change would allow the use of statutory offers of settlement

in claims under the Wisconsin Fair Employment Act, the Wisconsin Family and medical leave Act and the new organ and bone marrow donor leave law.

4. The primary provisions would be:

a. If an employer makes an offer of settlement which the complainant rejects, and the complainant ultimately fails to obtain a more favorable award than the employer’s offer, then the complainant would be responsible for its own post-offer costs and the employer’s post-offer costs.

b. If a complainant makes an offer of settlement which the employer

rejects, and the complainant ultimately obtains a more favorable award than the rejected settlement offer, then the complainant would be entitled to prejudgment interest on any award.

5. Should this provision pass, it will likely encourage early settlement of

claims and may curb the pursuit of claims that lack merit. C. Paid family and medical leave.

1. While unlikely to get much traction, a bill was recently introduced (2017 SB 215) that would provide for expanded and paid family and medical leave.

2. The bill would require employers to pay a percentage of income into a

trust fund to distribute to those on approved leaves. The proposal would

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also expand the Wisconsin FMLA to employers with 25 or more employees and require leave for grandparents, grandchildren, siblings and for family members who have qualifying exigencies due to calls to military service.

IV. EEO-1 Reporting

A. Unless action is taken to delay or repeal the rule, employers with 100 or more employees will be required to use a new form of the EE0-1 report.

B. The new EEO-1 report, which has been revised for purposes of collecting pay

information, is due on March 31, 2018. The Equal Employment Opportunities Commission (“EEOC”) has published instructions and a sample report and data file online: https://www.eeoc.gov/employers /eeo1survey/2017survey.cfm.

C. The report requires employers to include a data on a “snapshot” of employees, and the following information will be required for each snapshot employee:

Wages for the calendar year based on W-2 Box 1 earnings; Hours worked for the year (for exempt employees, reporting may be based

on either actual hours worked or a proxy of 40 hours per week for full-time employees and 20 hours per week for part-time employees);

Job category based on the ten categories specified in the report; Race/ethnicity; Sex; and Establishment where employed.

D. Banks with 50-99 employees will not be required to track or report wage information, but will be required to tally employees by job category and then by sex and ethnicity or race, as they did before.

E. There are several concerns about the new form, including that there is no method

for explaining legitimate grounds for disparities in pay and there is question as to how the EEOC will use the information provided. Pay equity is a key enforcement initiative for the EEOC, so prudent employers will take this opportunity to examine pay issues prior to submitting the EE0-1.

V. Non-Compete and Non-Disclosure Agreements. A. Defense of Trade Secrets Act.

1. On May 11, 2016, President Obama signed the Defend Trade Secrets Act (DTSA) into law. This important new legislation creates a federal, private,

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civil cause of action for trade-secret misappropriation in which “[a]n owner of a trade secret that is misappropriated may bring a civil action . . . if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.” Prior to the passage of the law, owners of trade secrets had to sue in state court in the event of misappropriation.

2. The DTSA includes a safe harbor for whistleblower employees that

provides for immunity from any criminal or civil liability under any federal or state trade-secret law for disclosure of a trade secret that is made in confidence to an attorney or federal, state, or local governmental official “solely for the purpose of reporting or investigating a suspected violation of law,” or in a filing in a lawsuit made under seal.

3. The remedies for companies suing former employees for trade-secret

misappropriation under the DTSA include punitive damages and attorney fees. However, in order to seek these remedies, an employer must advise its employees of the existence of the whistleblower immunity. Therefore, if an employer requires employees to sign non-disclosure agreements and employees may have access to the company’s trade secrets, then the employer should update their employment policies and agreements going forward to include either the required DTSA whistleblower immunity notice, or a cross-reference to a policy document that includes a statement about the DTSA’s whistleblower immunity.

B. Non-Solicitation of Employee Agreements.

1. The Wisconsin Court of Appeals issued a decision on August 17, 2016, ruling that non-solicitation of employee (“NSE”) provisions in agreements between employers and employees are subject to the same rigorous enforceability requirements as agreements restricting competition by former employees (non-compete agreements).

2. If the Court of Appel’s decision stands, employers will now have to justify

which of their employees are off-limits to solicitation, rather than restricting solicitation of all employees. Employers may have to identify a meaningful relationship between a former employee and the group of employees that cannot be solicited, which relationship must create some unfairness by the former employee’s solicitation. Employers will also have to be more selective as to the type of employment or activity for which the current employee cannot be solicited, i.e., is prohibiting solicitation of a current employee to work for a non-competitor justified? Satisfying requirements such as these require careful consideration.

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3. The Wisconsin Supreme took the case for review and briefs have been filed.

VI. OSHA Electronic Record Keeping Rules–Impact on Drug Testing.

A. Many employers have historically had policies that they will drug test an

employee who has been involved in a workplace accident or who has suffered a workplace injury.

B. In May of 2016, OSHA published a final rule requiring certain employers to

retain required OSHA records electronically. The rule also includes a provision stating that employers must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately, and that a procedure will not be deemed reasonable if it would deter or discourage reasonable employees from reporting workplace injuries or illnesses.

C. In OSHA’s October 19, 2016 guidance of the final rule, the agency stated that

post-accident drug testing without an objectively reasonable basis to do so would violate the anti-retaliation provision of the new rule because it may dissuade employees from reporting accidents or injuries. In other words, post-accident drug testing should only occur if there is a reasonable possibility that drug use was a causal factor in the incident, or an employer will risk violating law.

D. There is speculation that the rule will not be able to survive legal challenges.

Nevertheless, if an employer currently has a post-accident drug testing policy, it may be an appropriate time to assess whether such a policy is needed and appropriate.

VII. Notable Cases. A. Employer Liability for Manager’s Off-Duty Conduct.

1. In what the Seventh Circuit Court of Appeals recognized as a “tragic case,” Anicich v. Home Depot U.S.A., Inc., the court ruled that Home Depot (along with two other companies that managed its garden centers), may be held liable for the actions of one of its supervisors who coerced his subordinate to attend an out-of-town wedding with him and then murdered and raped her after the wedding.

2. The plaintiff in the case was the estate of the deceased employee and her

unborn daughter. The plaintiff alleged that Home Depot was negligent in its supervision of Cooper, as it had continued to employ him despite his

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known history of sexually harassing, verbally abusing, and physically intimidating his female subordinates, including Bromfield.

3. The plaintiff’s case was based on the legal theory of negligent supervision.

This is a concept under state law that holds that while one person generally does not have a legal duty to prevent the criminal actions of another, there is an exception that requires employers to act reasonably in hiring, supervising, and retaining their employees. While this case was brought under Illinois law, Wisconsin courts recognize a similar theory of negligent supervision. Under both Illinois and Wisconsin law, one of the critical elements of proving that an employer is liable for negligent supervision is demonstrating that the employer’s actions were responsible for causing the injury at issue. To do this, the plaintiff must demonstrate that the employee’s wrongful actions and the harm they caused were foreseeable.

4. The defendant employers argued that Cooper’s murder and rape of

Bromfield could not have been foreseeable, because those acts were far more extreme than even his most offensive prior behavior. They also argued that because Cooper had not previously made explicit threats or actually hit anyone, it would not have been reasonable to foresee his violent behavior. The court rejected both of these arguments, explaining that the question of whether Cooper’s actions were foreseeable is an issue that a jury must decide based on all of the facts presented. The court emphasized that the defendants could not avoid having a jury decide this issue just because they may not have foreseen the precise nature of the harm and the exact manner of how it would occur. Rather, if the plaintiff is able to present facts on which a jury might conclude that the actions and harm at issue were reasonably foreseeable, that question becomes an issue for a jury.

5. The defendants also argued that they could not be liable for Cooper’s

actions because they did not happen on the job or even on the employer’s premises. The court also rejected this argument. The court acknowledged that an employer generally will not be liable for an employee’s off-the-job criminal conduct simply because the employee knew the victim through work. Rather, there must be some further connection between the criminal action and the job, such as the action happening on the employer’s premises after hours or involving the use of the employer’s property. In this case, the court found that this criterion was met because Cooper used his supervisory authority to compel Bromfield to attend the wedding. The court explained that the employer provided Cooper with this authority by virtue of his employment, and it therefore had a duty to properly monitor and supervise his use of that authority.

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6. While the Anicich case did not determine that the defendants were necessarily liable for Cooper’s heinous actions—it concluded that this was an issue for a jury to decide—it provides an important reminder that employers must vigilantly monitor and address violence and harassment in the workplace, including in circumstances where the violence or harassment might extend beyond the employer’s premises and outside of work hours. It is also a reminder that violent and harassing behavior can quickly escalate, and an employer may be held accountable for the results, particularly if it has a history of tolerating and not effectively responding to harassment by its employees. Anicich is obviously an extreme case, but an employee’s violence or harassment does not have to rise to the level seen in this case for an employer to be found liable for negligent supervision.

7. In the public sector, employers have some added protection against

negligent supervision claims under Wis. Stat § 893.80(4), which provides immunity for certain intentional and discretionary conduct of their employees. However, the protections of this statute have eroded over time, and it does not provide a guarantee of immunity in every case, which means that the lessons of Anicich are still important for public sector employers.

B. Employer Liability for Adverse Action Related to an Employee’s Disability.

1. In a case involving a fact pattern that occurs with increasing frequency, the Wisconsin Court of Appeals in Wisconsin Bell, Inc. v. LIRC addressed the question of whether an employer may be held liable under the Wisconsin Fair Employment Act (WFEA) for disability discrimination where it takes adverse employment action against an employee based on conduct that the employee asserts was caused by the employee’s disability. This is not a new question under WFEA, as the Wisconsin Labor and Industry Review Commission (LIRC) have repeatedly found that an employer can be held liable in these circumstances. However, Wisconsin Bell represents the first time that the Wisconsin Court of Appeals has specifically affirmed LIRC’s position on this issue.

2. Wisconsin Bell involved an employee, Charles Carlson, who was known

by his employer, Wisconsin Bell, to have bipolar disorder. Wisconsin Bell provided Carlson with various accommodations over a period of several years. However, when Carlson moved into a new call center position in 2010, he did not disclose his bipolar diagnosis to his new supervisor, as he mistakenly understood that this information would have been passed on by management.

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3. Carlson’s new supervisor disciplined Carlson after observing him disconnect eight calls in a period of nine minutes, without explanation, in violation of Wisconsin Bell’s policy against call avoidance. This discipline, a suspension pending termination, was reviewed at a disciplinary hearing at which Carlson presented evidence from his health care providers regarding his bipolar disorder and its symptoms, such as “extreme moods” prompted by “relatively minor frustration.”

4. Wisconsin Bell nevertheless determined that discipline was appropriate, as

intentionally disconnecting customers would not be allowed under any circumstances, and it imposed a fifty-day unpaid suspension. Wisconsin Bell informed Carlson that if he needed an accommodation in the future, he should request it, but he would not be provided an accommodation that involved call avoidance.

5. Wisconsin Bell also had Carlson commit to a “Back to Work Agreement,”

under which he agreed that for a one-year period after his return to work, Wisconsin Bell would have just cause to terminate his employment for any infractions relating to customer care or breach of integrity. Ten days before this agreement was set to expire, Carlson was found to be improperly “chatting” with a co-worker over an internal messaging system while his phone was set to inactive mode using a “health code,” which was intended to be used by employees for purposes such as illness or needing to use the bathroom. He was therefore disciplined with a suspension pending termination.

6. At the hearing on this disciplinary action, Carlson again presented

evidence regarding his bipolar disorder, including a letter from his health care provider noting a recent increase in his symptoms and medication. Carlson explained that he had activated the health code after receiving news that he had failed a test for the Collections Department, which had greatly upset him, and he stated that he “doesn’t react to things like everybody else.” He further explained that when he activated his health code, he first went to his supervisor to see about leaving for the day, and he was told to “do what you need to do.” Upon returning to his workstation, he decided to attempt to keep working because the call center was in “Code Red” (heavy volume), and he was “chatting” with friends for support, which was a coping mechanism that had been suggested by his therapist. When he was eventually confronted by his supervisor about the chatting, he decided to leave work early because he was upset and crying and would not have been able to handle calls in a professional manner.

7. Despite this evidence, Wisconsin Bell nevertheless determined that it

would move forward with Carlson’s termination for breach of the Back to

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Work agreement. As a basis for this decision, Wisconsin Bell cited Carlson’s chatting while the health code was activated and his leaving work early, both of which Wisconsin Bell characterized as improper call avoidance. Wisconsin Bell also stated that it did not believe that Carlson was truly ill.

8. After his termination, Carlson filed complaints under the WFEA alleging

that both his 50-day suspension and his eventual termination constituted unlawful discrimination based on his disability. After a hearing on these claims, an Administrative Law Judge (ALJ) concluded that Wisconsin Bell had violated the WFEA in regard to both issues because its actions were based on Carlson’s disability, and further, that Wisconsin Bell had refused to reasonably accommodate Carlson’s disability. Wisconsin Bell appealed this decision to LIRC, and LIRC upheld the ALJ’s determination that Carlson’s termination was unlawful. However, LIRC concluded that the suspension did not violate the WFEA because the individuals responsible for his discipline were not aware of his disability at the time, and even if they had been, it would not have been a reasonable accommodation to permit Carlson to hang up on customers.

9. The Court of Appeals reviewed and affirmed LIRC’s decision. It

approved of LIRC’s reasoning—which it called the “inference theory”—that disciplinary action that is based on conduct caused by an employee’s disability violates the WFEA. The court explained that a necessary element of the inference theory is evidence that the employer had knowledge of the link between the employee’s disability and the conduct that resulted in the adverse action by the employers. The court found that it was reasonable for LIRC to conclude that this evidence existed in regard to Carlson’s termination based on the information he presented at the first review hearing, which included letters from his health care providers, as well as the fact that his conduct that resulted in the termination decision was consistent with the symptoms described in those letters.

10. The court also addressed the fact that in cases such as this, where the

connection between the employee’s disability and his conduct would be outside of the expertise of LIRC, expert testimony is necessary to establish the causal link. The court found the required expert evidence in the form of the letters from Carlson’s health care providers, as well as testimony that they provide during the hearing process, all of which supported a causal connection between Carlson’s bipolar disorder and his “chatting” at work after receiving upsetting news. The court noted that Wisconsin Bell’s response in the face of this evidence was to simply choose not to believe Carlson, without giving any consideration to the information from his doctors, and without providing its own expert evidence to contradict

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that information. The court found that by taking this approach, Wisconsin Bell did not act in good faith in terminating Carlson’s employment.

11. In sum, while Wisconsin Bell may not establish new law, it provides a host

of important lessons for employers. Addressing misconduct and performance issues with an employee who may have a disability that relates in some way to the conduct at issue is one of the most challenging issues an employer can face. This is particularly true when the disability at issue is a mental health condition, as the potential connection between the disability and the employee’s conduct may be murky. Wisconsin Bell teaches that in these circumstances, an employer must proceed cautiously. Among other things, an employer should consider:

Whether the employee has explicitly disclosed a disability or made a

request for a reasonable accommodation. If not, whether the employer is aware of facts that might reasonably

suggest that the employee has a disability or has indicated a need for a reasonable accommodation.

If a disability has been disclosed or may reasonably be suspected, is it possible that there is a connection between the disability and the conduct at issue?

Is there a need for the employer to seek additional information in regard to any of these issues? o Does the employer need to seek information from the employee’s

health care providers? o Does the employer need to engage its own experts to evaluate the

employee’s condition or the potential connection between that condition and the conduct at issue?

Before imposing any discipline, does the employer have an obligation to engage the employee in the interactive process to attempt to identify a reasonable accommodation for the employee’s disability?

If the employee has come forward with evidence of a connection between a disability and the conduct at issue, has the employer adequately considered that information?

This is only a partial list of potential issues and considerations, and each circumstance will depend on the particular facts, which is part of what makes this such a challenging issue for employers. Nevertheless, the overall lesson of Wisconsin Bell is clear: Employers that disregard potential connections between an employee’s disability and conduct for which the employee will be disciplined do so at their own peril.

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C. Unemployment Compensation Standard for "Substantial Fault." 1. The Wisconsin Court of Appeals issued a decision on February 2, 2017

that offers employers guidance regarding the circumstances under which an employee will be disqualified from unemployment compensation because the employee was terminated for substantial fault connected to the employee’s work. In Easterling v. LIRC, No. 2016AP190 (Wis. Ct. App. Feb. 2, 2017), the court explained that an employee who was terminated for an inadvertent error was not terminated for substantial fault.

2. The substantial fault standard was established in 2013 and was expected to

diminish the number of former employees qualifying for unemployment compensation. The new substantial fault standard was added to the statute in addition to a new statutory definition of misconduct (codifying the judicial definition of misconduct as it had evolved over the years). Substantial fault is considered after it is determined that the employee was not terminated for misconduct. An employee who is terminated for misconduct or substantial fault is not eligible for unemployment compensation in most situations.

3. Substantial fault includes acts or omissions of an employee over which the

employee exercised reasonable control and which violate reasonable requirements of the employer. However, substantial fault does not include: (1) one or more minor infractions of rules unless repeated by the employee after a warning; (2) one or more inadvertent errors; or (3) any failure of the employee to perform work because of insufficient skill, ability, or equipment. Wis. Stat. § 108.04(5g) (emphasis added).

4. There is a narrow distinction between an omission by the employee over

which he or she exercised reasonable control and an inadvertent error. In Easterling, the employer operated a transportation service for individuals with special needs. The company created an explicit wheelchair safety policy requiring the driver to secure any passenger in a wheelchair prior to transport. If an employee fails to follow the policy, the employee can be immediately terminated. Easterling failed to properly secure a wheelchair in accordance with the policy, and an elderly passenger’s wheelchair tipped over. Easterling was terminated.

5. The Court of Appeals ruled that Easterling committed an inadvertent error

in failing to secure the passenger’s wheelchair and, therefore, was not terminated for substantial fault. Easterling positioned the wheelchair properly and applied the brakes but forgot to secure the floor straps. The evidence showed that Easterling was overwhelmed as she assisted four other passengers while rushing because her van was parked in a busy crosswalk. Failing to secure the wheelchair was not an affirmative choice

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by the employee—Easterling simply forgot to take the final step to secure the floor straps. Therefore, her act was an inadvertent error, even though Easterling admitted to violating the wheelchair safety policy.

D. Substantial Fault—Take Two.

1. On May 4, 2017, Wisconsin Supreme Court ruled that an employee who committed eight cash-handling errors over the course of 80,000 transactions committed “one or more inadvertent errors” and therefore was not discharged due to substantial fault. Operton v. LIRC, 2017 WI 46 (May 4, 2017). Operton worked for Walgreens from July 17, 2012 to March 24, 2014 as checkout clerk. Operton handled more than 100 cash-handling transactions a day during the course of her employment. After her eighth cash-handling error, Walgreens terminated her.

2. The question was whether Operton’s cash-handling errors constituted

“inadvertent errors.” The Court looked to the dictionary definition of “inadvertence,” which was “an accidental oversight: the result of carelessness.” While an employer’s warning might be relevant in determining whether an employee’s error was inadvertent, warnings by the employer are not dispositive as to inadvertence. The Court held that multiple inadvertent errors, even if the employee was warned about the errors, do not necessarily constitute substantial fault.

3. The Court concluded that eight accidental or careless errors were

“inadvertent errors” when they are made over the course of 80,000 cash-handling transactions during a 21-month period. The Court left open whether there was a point at which the number of errors that seem inadvertent in isolation cease to be inadvertent when viewed in their totality. The length of time between the errors supported the Court’s conclusion—Operton went months without making a cash-handling error. Additionally, Operton violated a slightly different cash-handling rule each time she made a mistake. The Court concluded that this was precisely the type of conduct that the legislature intended to exempt from the definition of substantial fault.

4. The first cases under the substantial fault standard have demonstrated that

Wisconsin courts are interpreting substantial fault fairly narrowly, consistent with Wisconsin’s public policy in favor of providing unemployment benefits.

E. Sexual Orientation Protected by Title VII.

1. In Hively v. Ivy Tech Community College, the Seventh Circuit Court of Appeals held that sexual orientation is a protected class under Title VII.

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2. Recognizing that it recognizes “gender non-conformity” as protected, the

court ruled that there no difference between gender non-conformity and sexual orientation.

3. While sexual orientation has been a protected class under the Wisconsin

Fair Employment Act for many years, plaintiffs with sex orientation claims may now have the option of proceeding in federal court, which opens the door to greater defense costs and greater potential damages.

VIII. ANNUAL LIMITS FOR HSAs AND HDHPs

A. The IRS released its annual Revenue Procedure updating the various limits for Health Savings Accounts (HSAs) and High Deductible Health Plans (HDHPs). For 2018, the limits will be:

1. HSA ANNUAL CONTRIBUTION LIMIT

Self-only coverage, $3,450

Family coverage, $6,900

2. HDHP ANNUAL DEDUCTIBLE LIMIT Self-only coverage, $1,350 Family coverage, $2,700

3. HDHP ANNUAL MAXIMUM OUT-OF-POCKET EXPENSE Self-only coverage, $6,650

Family coverage, $13,300

B. See Rev. Proc. 2017-37. https://www.irs.gov/pub/irs-drop/rp-17-37.pdf IX. ON THE HORIZON?

A. Compensatory time allowed in the private sector? (Wisconsin law still would not permit it).

B. Mandatory use of E-verify? C. Expanded FMLA for death of son or daughter?

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