Labor Employment Services | DeWitt LLP

In recent years, employers’ background screening practices have come under increasing attack. Our firm has counseled employers across the country, ranging from Fortune 500 companies to small businesses, on developing and implementing sound background screening policies. We have helped companies to create legally compliant disclosure and authorization materials, as well as legally compliant adverse action paperwork. We have also advised clients on how to address the EEOC’s “individualized assessment” mandate, as well as state and municipal laws that affect the type of criminal history or credit information that can be used by employers.

Our labor and employment attorneys have also helped defend employers’ background screening practices in administrative actions. For example, we frequently defend employers against criminal conviction and arrest discrimination cases brought before the Equal Rights Division of the Wisconsin Department of Workforce Development.

Unionized companies face a unique set of labor law issues. They must maintain a working relationship with the union, respond to information requests from union stewards, analyze whether the company must negotiate with the union as to certain issues, determine how to respond to grievances as to company practices, arbitrate grievances, and address numerous other issues.

Our attorneys regularly help unionized clients to develop a strategic, pragmatic approach, and then execute on it. We help clients negotiate new collective bargaining agreements that reflect wisdom gleaned from years of collective bargaining negotiations and the many other union circumstances our attorneys have seen. We help companies determine how to facilitate changes in practices, utilizing an approach which best comports with business priorities and complies with the law. And we help companies determine whether and how they should fight union grievances, and how to fight issues raised with the National Labor Relations Board.

At some point, nearly every company in America faces a discrimination, harassment, or retaliation charge. Large employers often face a steady stream of charges.

DeWitt attorneys regularly defend employers of all sizes from claims of discrimination and retaliation asserted in front of the Equal Employment Opportunity Commission (EEOC), the Wisconsin Department of Workforce Development (DWD), the Minnesota Department of Human Rights (MDHR), other state agencies, and in federal and state courts throughout the country.

DeWitt attorneys have extensive experience defending causes of action asserted under:

• Title VII of the 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA)
• The Americans with Disabilities Act Amendments Act (ADAAA)
• The Genetic Information Nondiscrimination Act (GINA)
• The Equal Pay Act of 1963 (EPA)
• The Wisconsin Fair Employment Act
• The Minnesota Human Rights Act
• Countless other federal and state laws

This experience includes addressing claims for race discrimination, religious discrimination, sex discrimination, sexual orientation discrimination, disability discrimination, age discrimination, criminal history discrimination, discrimination based on alienage and national origin, alleged hostile work environments and countless types of retaliation.

DeWitt attorneys are sensitive to the fact that each client has its own litigation philosophy. We take a client and fact-specific approach to each individual case, defending the matter in the manner best suited to meet our client’s financial and legal needs. strategic approaches have led to positive results for many of our clients, including favorable early settlements, trial verdicts and wins on dispositive motions decided in advance of trial.

For many companies, employee handbooks remain the backbone of a strong HR department. Our attorneys have reviewed employee handbooks for countless companies ranging in size from 5-employee start-ups to multi-state, publicly traded corporations. We know how to spot issues, when to make modest tweaks, and when to suggest policy rewrites. Our attorneys often identify issues which our clients did not know presented any problems, and thereby help clients avoid unnecessary internal complaints and lawsuits. Small changes can often make a profound difference.

Among the types of handbook provisions we frequently help clients to revise:

• Vacation and Paid Time Off (PTO) Policy
• Family and Medical Leave Act Policy
• Employee Background Screening Policy
• Hours Worked and Overtime Policy
• Anti-Nepotism Policy
• Anti-Discrimination, Harassment, and Retaliation Policy
• Computer Policy
• Driving Policy
• Progressive Discipline Policy
• Workplace Alcohol and Drug Use Policy
• Outside Employment Policy
• Bulletin Board Policy
• Disability Accommodation Policy
• Unpaid Leave Policy
• Holiday Pay Policy
• I-9 Compliance Policy
• At-Will Policy

In our experience, one of the best ways to minimize the chances of unwanted employment litigation is to establish sound policies, regularly update and revise those policies, and train staff on how to implement the policies appropriately. Our labor and employment attorneys regularly provide training to audiences throughout the United States on human resources, employment law and labor law issues. We routinely deliver creative, engaging, best practices training sessions on employment and labor law issues such as:

• COVID-19/pandemic-related employment issues
• Handling the employment application process correctly
• Avoiding discrimination, harassment, and retaliation in the workplace
• Developing sound background screening programs
• Protection of confidential information/trade secrets
• Restrictive covenants/non-compete agreements
• Addressing employee discipline in the workplace
• Addressing employee accommodation and leave issues
• Handling the chronic complainer
• Minimizing risks associated with the most common wage and hour issues
• OSHA compliance
• Getting terminations right
• Classifying employees and independent contractors appropriately
• Performance management and collective bargaining negotiations in the union context
• Best practices for I-9 policies and procedures
• Conducting thoughtful workplace investigations
• Union avoidance
• Hot topics in employment law

Our attorneys are experienced presenters and regularly conduct training sessions on a wide variety of employment/labor law topics. We are happy to present virtually and/or in-person, depending on the needs of our clients. Please reach out to any member of our practice group for further information.

Proper handling of the I-9 Employment Eligibility Verification process has substantially increased in importance. The number of governmental audits related to the I-9 process has increased in recent years and is expected to continue to increase over the next few years. Our attorneys can help train your HR personnel and ensure that your company’s I-9 process follows federal law. We can also review your company’s existing I-9 records to ensure they follow federal regulations and, where needed, take any available steps to correct your records to mitigate your exposure to liability in the event of a government audit. Our attorneys can also provide legal counseling and representation during a governmental audit.

One of the most overlooked employment-related issues facing many businesses today relates to the designation of individuals as independent contractors. Many businesses mistakenly assume that if the company and individual agree to treat the business connection as an independent contractor relationship that is all that is needed to establish a legal business relationship. Unfortunately, this assumption is not correct. When companies misclassify individuals as independent contractors, they risk high-penalty audits by state unemployment and workers’ compensation agencies, wage-related class and collective actions under federal and state laws, IRS enforcement actions, and a variety of other unfavorable outcomes.

Our attorneys have worked with dozens of clients in a variety of different industries on a pro-active basis to avoid difficulties that arise with the myriad of federal and state regulations and classification tests in this area. Because we understand the factors driving independent contractor audits and findings, we regularly provide help in preparing independent contractor contracts to improve the possibility of withstanding the scrutiny of governmental audits. We also conduct strategic planning and analysis of business practices to meet independent contractor requirements, and train clients’ staffs in practical, hands-on strategies to bolster the likelihood that independent contractors have been properly classified.

Our attorneys have also helped companies deal with governmental audits and defend against enforcement litigation not only in Wisconsin and Minnesota, but in numerous states throughout the nation in defense of our clients' classifications of independent contractors. We understand what brings favorable outcomes and have substantial experience dealing with governmental agencies.

Transportation |Trucking 

For more than 25 years, our attorneys have assisted trucking companies with a wide range of employment issues. Many trucking companies have turned to us for legal advice related to labor and employment issues. Our attorneys are well versed in the trucking industry and understand both employment and safety related issues and regulations issued by the Department of Transportation (DOT) and the Federal Motor Carrier Safety Administration (FMCSA).

DeWitt’s attorneys have a unique understanding of the Surface Transportation Assistance Act (STAA) administered and enforced by OSHA, which addresses issues related to whistle blowing and retaliation. We have frequently prepared position statements responding to STAA charges and helped trucking companies to defend at hearings before Department of Labor administrative law judges. We understand how to evaluate the strength of cases at the beginning and how to best position the company for a reasonable resolution—whether via settlement o​r a judicial decision.

Professional Service Firms 

Our law firm has an exceptional reputation in representing professional services firms in industries as diverse as medical, dental, legal, veterinary, engineering, architectural and accounting. While these industries are distinct in many ways, the employment issues arising in professional office environments are often similar. One important area in which our attorneys have significant experience with professional service firms involves disputes between shareholders/equity owners.

We work closely with our business attorneys in preparing corporate documents and contracts to help ensure that employment and partnership issues can be resolved in a non-litigation manner. However, if litigation develops, we have extensive experience in handling such lawsuits, arbitrations, and/or mediations.

Franchises 

Due to the often-transient nature of the franchise workforce, franchise owners typically face unique employment law challenges. Our labor and employment attorneys have assisted franchise owners in all aspects of human resources and employment law. Among other things, we have helped franchises to develop strong employee handbooks, determine proper wage payment methods, create sound employment applications, arrive at compliant background screening procedures, and make day-to-day decisions on discipline and terminations. Our attorneys have also helped franchises respond to legal threats and complaints from former and current employees. We are sensitive to the challenges associated with running a franchise, and we know how to help franchises address employment issues in a pragmatic way.

Manufacturing 

DeWitt attorneys have substantial experience assisting large and small manufacturing companies with employment matters. Our team has advised manufacturing clients on a wide range of compliance issues, including:

• The Occupational Safety and Health Administration’s (OSHA) interpretation of Lock Out/Tag Out procedures and their application to manufacturing processes
• The safe handling of hazardous substances in the manufacturing process
• Issues related to worker’s compensation including alleged employer discrimination based on worker’s compensation injuries and violations of safety provisions
• The development of policies related to workplace management systems and occupational safety
• The implementation of workplace safety policies and procedures concerning machine guarding issues during tool changes and adjustments

Our employment law team also has national experience representing employers when matters evolve into litigation. DeWitt attorneys have successfully defended manufacturing clients in litigation in state and federal courts throughout the nation as well as in proceedings before OSHA and the Mine Safety and Health Administration (MSHA).

Financial Services 

DeWitt attorneys are well versed in employment matters affecting the financial services industry. Our employment relations team has represented banks and financial services clients in a wide array of litigation proceedings both in court and before the Financial Industry Regulation Authority (FINRA). With this experience, our team has gained a unique understanding of industry-specific issues which allows us to provide our clients with advice that is individually tailored to each situation. A sampling of the claims that DeWitt attorneys have defended against for financial services clients includes, but is not limited to, wrongful termination, discrimination, and breach of contract.

Staffing 

DeWitt attorneys have extensive experience working with companies that provide staffing services, including one of the largest staffing companies in the United States. Our experience includes, but is not limited to, drafting agreements for the provision of staffing services, counseling staffing company clients regarding a variety of employment-related issues, providing advice regarding the business relationship between staffing companies and their clients, developing sound restrictive covenants, and defending legal actions initiated against staffing companies in front of the Equal Employment Opportunity Commission, (EEOC), the Wisconsin Department of Workforce Development (DWD), the Minnesota Department of Human Rights (MDHR), state and federal courts, and in other federal and state courts and administrative agencies located in more than twenty-five different states.

The National Labor Relations Act (NLRA) provides protections for union and non-union workers that are often not plainly obvious.

Our team of attorneys is well versed with the NLRA. We help companies avoid National Labor Relations Board (NLRB) charges by keeping abreast of our clients’ practices and providing timely advice related to suggested changes in practice. In the event one of our clients encounters an NLRB charge, we help them to evaluate the merits of the charge, draft a strong position statement, and if necessary, strategically litigate the case.

When an OSHA investigator arrives at a company site for an audit, it is imperative that the company understand its rights under the law, as well as the process that will ensue. DeWitt attorneys have extensive experience in all facets of OSHA matters, including safety audits, voluntary compliance programs, investigation protocols and strategies, negotiations with OSHA officials and DOL attorneys, and litigation through the OSHA administrative procedure for a Notice of Contest. This is truly an area where it is imperative to “know us before you need us” as there are many steps that a business can take to avoid and protect itself from OSHA citations. Our attorneys have assisted in some of the most frequently cited violations by OSHA including, but not limited to, fall protection, hazard communications, respiratory protection, lockout/tagout, ladders and scaffolding, and machine guarding. We have also developed strong working relationships with OSHA officials and understand the OSHA citation process very well.

For most companies, restrictive covenants have taken on added importance. They provide a critical vehicle for safeguarding client relationships and confidential information. DeWitt attorneys have worked closely with companies throughout Wisconsin and Minnesota to craft non-compete agreements, non-solicitation agreements, and confidentiality agreements. We understand how to draft the language in the restrictive covenants, and format the restrictive covenants, to provide the greatest chance of enforcement.

We have also worked with a variety of employers to enforce restrictive covenants through requests for temporary restraining orders, preliminary injunctions, and other mechanisms.

DeWitt attorneys achieved three of the most extremely significant results for Wisconsin employers in the restrictive covenant arena in the last 20 years, including:

• Dal Pra v. Star Direct, 2009 WI 76 – The Wisconsin Supreme Court held that a valid restrictive covenant could be enforced even where other restrictive covenants contained in the same written agreement were invalid. Star Direct is now Wisconsin’s leading case authority for evaluating the propriety of restrictive covenants under Wisconsin Statute 103.465.
• Selmer v. Rinn, 2010 WI App 106 – The Wisconsin Court of Appeals ruled that Wisconsin’s stringent restrictive covenant law did not apply to certain types of agreements between employees and employers, the first time it expanded this “exception” since the early 1980s. This case has provided a new means for employers to enforce restrictive covenants that may be deemed too broad to enforce under Wisconsin Statute 103.465.
• Henderson v. U.S. Bank, N.A., 615 F. Supp. 2d 804, 810 (E.D. Wis. 2009) – The Eastern District of Wisconsin agreed that in certain situations a confidentiality clause lacking a time limitation could potentially be enforced, one of the first cases interpreting Wisconsin law to do so. It also offered new support for the theory that a non-solicitation agreement could cover not just actual clients but certain prospective clients.

In addition to helping employers create and enforce restrictive covenants, we have helped numerous companies to assess risks and develop strategies related to job applicants who have agreed to restrictive covenants with competitors. We routinely answer questions such as: 

• What is the likelihood that this agreement would be enforced by a court? 
• Who is the competitor likely to sue?
• What can the prospective employer do to limit risk?

Given our significant experience in this area, we are confident our team is positioned well to offer companies legal guidance, effectively and efficiently, on the topic of restrictive covenant counseling and litigation.

Wage and hour litigation continues to present one of the most serious employment law risk areas for business entities in the United States. Our experienced team of attorneys has handled numerous wage and hour lawsuits brought against employers involving single plaintiff, multi-plaintiff, and class and collective actions. We regularly litigate wage and hour cases, including, but not limited to, employee misclassification (both independent contractor and exempt v. non-exempt issues), overtime claims, meal and rest period violations, prevailing wages, payment upon termination of employment, and unlawful deductions from wages, to name a few. Claims of improper pay policies or practices have the potential for significant damages and remedies, and we aggressively defend our clients against such claims.

We have also found that the best defense to wage claims is prevention. To this end, we routinely counsel employers on how to address risks under the Fair Labor Standards Act (FLSA) and state wage laws. During their careers, DeWitt attorneys have helped conduct audits of pay practices of some of the largest companies in the nation. We work closely with our clients’ management and/or human resources teams to help implement wage policies and practices that best meet their respective business and legal needs.