When Can I Sue My Employer for Wrongful Termination?

Wrongful Termination

Getting fired is never easy. Sometimes it comes as no surprise: The company is cutting back. You know, in your heart of hearts, that your job performance wasn’t up to snuff. In these cases, you dust yourself off, polish your resume, and resolve to do better next time.

But what if you suspect you were wrongfully terminated?

In order to sue your employer for wrongfully termination under the law, you need to meet certain specific criteria. Here’s a brief overview of what they are.

The Concept of “At Will”

You may have heard the term “at will” without really understanding how it applies to your employment status.

Nearly all states in the U.S. are “at will” states. Your employer hires you “at will” and can fire you “at will” — that is, without a specific reason — just as you can quit for any reason. Individual contracts signed between employees and employers take precedence over the “at will” status of your employment, but in the absence of a contract, being fired unfairly, by itself, does not give you the ability to sue your employer.

So when, exactly can a person sue?

Discrimination Under State or Federal Law

If your termination violates federal or state discrimination laws, you may have a wrongful termination case. The complete list is broad, but most discrimination cases involve race, age, gender, or disability. Additionally, an employer is prohibited from firing an employee if they complain about discrimination or harassment because of race, age, gender, disability, or other protected categories.

Violations of the “Whistleblower” Statute

Under law, no one can force you to do something illegal — for instance, you can’t be fired for refusing to help your employer commit fraud. You also can’t be fired for reporting fraudulent activities under state and federal whistleblower statutes.

Time Off for Serious Medical Conditions

The Family and Medical Leave Act (FMLA) says that qualified employees are entitled to up 12 weeks of unpaid medical leave to care for themselves or a close family member who suffers from a serious medical condition. Also, the FMLA gives qualified employees up to 12 weeks of leave to care for a newborn. If your employer denies your request for a leave, or fires you for taking a protected leave, you might have a claim.

Still Wondering if You Have a Wrongful Termination Case?

GCW is a Wisconsin law firm with offices in Eau Claire, Madison, Waukesha and Milwaukee. Our compassionate and dedicated attorneys have over 20 years of experience in wrongful termination cases. We would be happy to parse the complexities of Wisconsin labor law and help you determine if you have a case. Contact us today to schedule a free consultation.

October 17, 2018/by Gingras, Thomsen & Wachs, LLP

Employment Law

Disability Discrimination in the Workplace

Disability

If you have a disability, you have legal rights. You deserve a fair chance to get a job, keep a job, and be promoted based on your qualifications and your job performance. If you need reasonable accommodations to carry out the essential parts of your job, Wisconsin and federal law say your employer should provide those accommodations.

Laws That Protect People with Disabilities on the Job

In Wisconsin, the Fair Employment Law says that employers are not allowed to discriminate against employees or job applicants because of their disabilities. This law makes it illegal to discriminate based on someone’s disabilities for many employment-related actions, including:

Hiring and Recruitment
Pay
Benefits
Promotions
Firing and Layoffs
Training
Harassment

The federal government offers similar protections to workers with disabilities through the Americans With Disabilities Act (commonly called “the ADA”). The ADA only applies to employers that have 15 employees or more. The Wisconsin law, however, applies to almost all employers, so you are covered even if your employer has fewer than 15 workers.

Both state and federal law protect also protect workers from discrimination when the employer believes an employee has a disability when he or she does not. For example, if an employee recovered from a heart condition, but that employee’s boss felt the employee could not handle stress and fires him or her because of it, that employee would have a claim even though by the time of the termination, the employee was no longer disabled.

Reasonable Accommodations

Sometimes people with disabilities would be able to perform a job if there were some changes to the work environment or the job. For example, an individual with a disability might need a wheelchair ramp or screen-reading software to perform his or her job functions.

Usually, if an employee needs a modification at the workplace, the employee is responsible for asking the employer for the accommodation. The law requires the employer to provide the accommodation if it is reasonable and does not create a hardship for the employer’s business.

What is “reasonable” and what is a “hardship”? The law doesn’t provide a list or a simple answer. Every situation is different. If you any questions about how this works in your situation, you should talk to an experienced employment discrimination lawyer to find out more.

What Can You Do?

If you think you may have been discriminated against in the workplace because of your disability, there are steps you can take to protect your rights:

Keep a record of anything that happens to you at work that you think may be discrimination. Record the date, the names of the people involved, and describe what happened.
Talk to your employer.
File a formal complaint with Human Resources or upper management.
File a complaint with Wisconsin’s Equal Rights Division or with the federal Equal Employment Opportunity Commission (EEOC).
Sue your employer.

Disability discrimination law is complicated. At any stage of the process described above, you will probably have questions. An employment discrimination lawyer can answer your questions. Having a good lawyer is essential if you decide to sue your employer.

Contact Gingras, Thomsen & Wachs, LLP

Gingras, Thomsen & Wachs, LLP is passionate about fighting for the rights of workers with disabilities. Contact our attorneys today for a free consultation.

September 19, 2018/by Gingras, Thomsen & Wachs, LLP

Employment Law

What To Do When Your Employer Is Uncooperative in a Workers’ Compensation Claim

Workers Compensation

Nobody wants to be injured on the job, but work injuries happen across the state of Wisconsin every day. The workers’ compensation system is designed to provide most Wisconsin workers with insurance protection when they are hurt at work.

Workers’ compensation laws say that when work related injury occurs, the employer must pay for the injured employee’s medical bills, including doctor’s bills, hospital bills, prescription and over-the-counter medications, medical or surgical supplies, rehabilitation, and more. In addition, the employer must pay for the employee’s travel expenses to seek treatment. If your injury causes temporary or permanent disability, your employer also should pay weekly benefits while you’re unable to work.

Employers’ Duties

If a work-related injury occurs, the employer is expected to file a claim with its workers compensation insurer promptly.

When the workers’ compensation system operates as intended, it can provide a valuable safety net to injured employees, helping ensure their own financial picture is not negatively impacted because of injuries sustained on the job. Unfortunately, some Wisconsin employers try to stall injured workers’ claims, try to avoid claims, or are simply uncooperative when an employee files a claim.

Steps to Take When Your Employer Isn’t Cooperating

If your employer is not cooperating in filing your claim, your first step should be to take it up with your human resources department. If there was a mistake internally, it may just take you bringing it to the company’s attention for it to be resolved.

If this does not resolve the problem, you can identify your employer’s workers compensation insurance company and make a claim with the insurance company yourself.

If your employer is still stalling or is refusing to cooperate with your claim for workers’ compensation benefits, a Workers’ Compensation attorney may be able to help. You have the right to appeal disputed claims and hiring an attorney who understands the system and processes can help you present evidence to bolster your claim for benefits.

Injured Workers Have Rights

The Wisconsin Worker’s Compensation Act gives workers the right to request hearings before Administrative Law Judges (ALJ) who will review all of the relevant facts and circumstances in disputed workers’ compensation claims and make rulings based on that information.

You may also have the right to sue a third party who is not your employer if you were injured on the job because of that third party’s actions or negligence.

At Gingras, Thomsen & Wachs, LLP, our workers’ compensation attorneys are committed to helping injured workers across the state of Wisconsin obtain the benefits the law says they are entitled to receive. To learn more and to schedule a free review of your case, contact us today in Madison, Milwaukee, Waukesha or Eau Claire.

September 17, 2018/by Gingras, Thomsen & Wachs, LLP

Employment Law

Workplace Discrimination Laws in Wisconsin

Workplace Discrimination

Discrimination in the workplace is illegal. Unfortunately, it happens every day in businesses across the state of Wisconsin. Whether you are a candidate for employment, a current employee, a former employee, or are a Wisconsin employer, it’s important to understand the framework of laws that are designed to prevent discrimination and hold businesses accountable when discrimination happens.

Overview of Workplace Discrimination Laws

People working in Wisconsin are protected by both state-specific and federal employment laws. Some of those laws include the following:

Wisconsin Fair Employment Act (WFEA). This state-specific law says employers cannot discriminate based on age, race, creed, color, disability, membership in any military forces reserve unit, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, and more. Employers are also prohibited under this law from requiring genetic testing or lie detector tests and cannot discipline employees based on the results of such tests.
Title VII of the Civil Rights Act of 1964. This federal law prevents discrimination based on a person’s race, gender, sexual preference, national origin, or religion.
Equal Pay Act. Employees have the right to be free from discrimination on the basis of sex when it comes to employment compensation.
Pregnancy Discrimination Act. Employers may not discriminate against employees who are pregnant.
Age Discrimination in Employment Act. This law makes it illegal to discriminate based on an employee’s age.
Americans with Disabilities Act (ADA). Employers may not discriminate against employees who have physical or mental disabilities. The WFEA actually provides stronger protection for employees than the federal ADA provides.
Uniformed Services Employment and Reemployment Rights Act of 1994. This law makes it illegal for employers to discriminate against veterans of the armed services.
City-Specific Laws. Some Wisconsin cities and towns also have municipal laws that protect employees from workplace discrimination.

With respect to each of these laws, employees are also protected from retaliation if they complain about discrimination under one of these laws.

Understanding Your Employment Rights

Discriminatory acts can occur in job postings, recruiting and hiring practices, employment evaluations, promotion (or demotion) decisions, compensation decisions about raises and bonuses, training, disciplinary action, or termination decisions. A victim doesn’t need to be a current employee for an employer to break one or more of these anti-discrimination laws.

Most discrimination comes in the form of a discrete act. For example, an employee might be fired because of his or her race, or an employee might be denied a promotion because of his or her gender. However, discrimination can also come in different forms. The law prohibits harassment based on an employee’s race, gender and membership in other categories, as well. An employer can be liable for creating or tolerating a hostile working environment.

When discrimination occurs, employers should be held accountable. Each of the laws mentioned above provide penalties for employers found guilty of engaging in discriminatory behavior. But quick action is required: the time limits for bringing claims is less than a year.

Take Action with Gingras, Thomsen & Wachs, LLP

If you believe you have been the victim of harassment or discrimination in the workplace, or if your business is concerned about its risks or needs to defend against claims of discrimination, the Employment Law attorneys at GCW may be able to help. There are timing considerations involved in filing discrimination claims under various laws, so it’s in your best interest to talk to an attorney sooner rather than later.

We have decades of experience helping both employees and employers with employment law matters. To learn more, and to schedule a case evaluation, contact us in Madison, Milwaukee, Waukesha or Eau Claire today.

August 22, 2018/by Gingras, Thomsen & Wachs, LLP

Employment Law, GTW Cases

What is Wrongful Termination?

Wrongful Termination

Losing your job is a scary thing. Not only does it affect you, but it can affect your family as well. When you are fired from your job, not knowing where your next paycheck will come from or how you will pay your bills is a very unsettling feeling. However, if you were fired or laid off, you may be wondering if your employer broke the law by doing so. The answer to that is “it depends.” First, we must look at what the law in Wisconsin says about when it is legal or illegal for employers to fire their workers.

What is Wrongful Termination?

“Wrongful termination” (sometimes called “wrongful discharge”) means that you were fired or laid off from your job illegally. Not every firing is illegal. In fact, in Wisconsin, most jobs are what is called “at will,” which means that either the employer or the worker can end the employment at any time. The employer can legally fire the worker, and the worker can legally quit the job for any reason — even a bad reason — as long as it is not for an illegal reason.

What Are Illegal Reasons for Terminating Employment?

Although the general rule is that an employer can fire a worker for any reason, there are important exceptions to that rule. Here at GCW, we are passionate in defending the rights of workers who were fired for illegal reasons.

It is Illegal to Fire Workers for Certain Discriminatory Reasons

Workers in Wisconsin are protected by both federal and state anti-discrimination laws. These laws make it illegal to fire workers because of certain types of discrimination. Specifically, in Wisconsin it is illegal to fire people because of their —

Race or color
Gender
Age
Disability
National origin or ancestry
Religion
Pregnancy or childbirth
Marital status
Sexual orientation
Genetic information
Harassment
Military service
Retaliation for asserting rights to be free of illegal discrimination
Arrest or conviction record (in some circumstances)
Refusal to take a lie detector test
FLSA
Government fraud
Use or non-use of lawful products (such as cigarettes) off the employer’s premises outside of working hours

If you believe that your employer may have fired you for a discriminatory reason, you should talk to a Wisconsin employment lawyer to find out more about your rights.

It Is Illegal to Fire Workers Because They Refused to Break the Law

In Wisconsin, the law protects workers who refuse to do something illegal. This is known as the “public policy” exception to the general rule of at-will employment.

For example, if you worked in a nursing home where you were legally required to report abuse, and you got fired because you followed the law and reported the abuse, then your termination was illegal.

Contact a Wrongful Termination Lawyer

At GCW, we have 20 years of experience standing up for workers who were fired illegally. We rise to any challenge to right the wrong. If you think you may have been fired or laid off illegally in Wisconsin, contact the GCW wrongful termination lawyers. We have offices conveniently located in Madison, Milwaukee, Waukesha and Eau Claire.

May 18, 2018/by Gingras, Thomsen & Wachs, LLP

Employment Law, GTW Cases

Sexual orientation is now a protected class in the workplace

In a landmark opinion, the Seventh Circuit became the first federal appellate court in the country to extend the protections on the basis of sexual orientation.

Until April 4, 2017, it was lawful under federal law for an employer to discriminate against its employees on the basis of sexual orientation. (It was already unlawful under state law). But on April 4, the Seventh Circuit, the federal court of appeals for the area that includes Wisconsin, Illinois and Indiana, ruled that Title VII prohibits discrimination on the basis of sexual orientation, because that type of discrimination is simply a subset of sex discrimination, which is explicitly forbidden by Title VII.

Title VII prohibits an employer from mistreating an employee because that employee belongs to a protected class, such as race or gender (“sex” is the term the statute uses). In Hively v. Ivy Tech, the plaintiff-employee, Hively, alleged that her employer, Ivy Tech, denied her several promotions because she is a lesbian. Hively lost in the trial court, and appealed to the Seventh Circuit.

The Seventh Circuit reversed the trial court in a landmark decision. The Seventh Circuit ruled that discrimination on the basis of sexual orientation was simply a version of sex discrimination. It reasoned that if Hively had been a man who was attracted to or had intimate relationships with women, Ivy Tech would not have engaged in discrimination. So, it was Hively’s membership in the protected class of gender (she is a woman) that was the determinative factor in the discrimination. Thus, her claim was covered by Title VII, even though Title VII does not include “sexual orientation” as a protected class.

Procedurally, Hively did not yet win her case. Her case is back in the trial court, where Ivy Tech now has an opportunity to disprove Hively’s allegations. (Ivy Tech denies that it discriminated against her on the basis of her sexual orientation or gender). Ivy Tech also has the opportunity to appeal the decision to the United States Supreme Court, which is likely given the current state of the law.

April 14, 2017/by Gingras, Thomsen & Wachs, LLP

Employment Law

Multiple Lawsuits Accuse McDonald’s of Stealing Wages

McDonald’s workers across three states filed lawsuits this week alleging that the fast food chain stole wages from its employees. According to the employees, “the company engages in a variety of practices to avoid paying them what they’re owed.” If the suits are granted class-action status, there could be roughly 30,000 employees included in the class. The lawsuits are seeking back pay and other damages.
Read Article: USA Today Candace Chol, USA Today 03/13/2014

March 18, 2014/by Gingras, Thomsen & Wachs, LLP

Employment Law

Attorney Paul Kinne discusses Employment & Labor Law Issues on In Business with Jody and Joan Radio Program

GCW Attorney Paul Kinne was featured on In Business with Jody and Joan radio program. Paul discusses employment law and recent changes in Wisconsin law, and how it affects the labor related issues.

February 1, 2013/by Gingras, Thomsen & Wachs, LLP

Employment Law

7th Circ. Lets Class Stand In DirectSat OT Action

By Abigail Rubenstein

Law360, New York (March 30, 2011) — The Seventh Circuit on Tuesday denied a request by DirectSat USA LLC and Unitek USA LLC to review a lower court’s decision to certify a class of satellite installation technicians in an overtime pay dispute.

A three-judge panel for the U.S. Court of Appeals for the Seventh Circuit denied DirectSat’s petition for an interlocutory appeal of an order certifying a nationwide Fair Labor Standards Act class as well as three classes bringing state law wage-and-hour claims.

The panel did not provide its reasoning for rejecting the appeal.

DirectSat was hoping to appeal Judge Barbara B. Crabb of the U.S. District Court for the Western District of Wisconsin’s decision to certify classes of workers who are accusing DirectSat and its parent company Unitek of forcing them to perform duties off-the-clock and denying them proper overtime compensation.

Judge Crabb certified an FLSA collective action and then divided the FLSA class into three subclasses based on the theory on which the plaintiffs’ were asserting their claims. Of the 4,000 DirectSat technicians notified about the suit, 952 individuals have opted in to the case, according to court documents.

The district court also certified classes to bring claims under state wage laws in Wisconsin, Pennsylvania and Minnesota. Like the FLSA class, each of these classes was further divided into subclasses in what the court characterized as an effort to “to address defendants’ concerns regarding commonality, typicality and management of the case.”

In its petition to the Seventh Circuit, DirectSat argued that Judge Crabb erred by granting class certification to technicians who did not all share the same claims, saying that the class members were subject to “varying informal practices.” The company claimed that the division of the plaintiffs into subclasses exacerbated rather than alleviated the problem.

The company further alleged in its petition that certifying the state law classes four months before the scheduled trial date increased the size of the case from the three named plaintiffs to 3,000 individuals, substantially upping the pressure on the company to consider settling.

The lawsuit was initially filed in October 2009 by Aaron Espenscheid a nonexempt, hourly employee responsible for installing, upgrading and servicing DirecTV equipment in Wisconsin. Two other named plaintiffs were later added to the suit to bring the Pennsylvania and Minnesota claims.

Espenscheid’s case is one of a string of lawsuits filed by technicians accusing the company, which provides installation service to DirecTV at approximately 24 locations across the country, of wage-and-hour violations.

Judges William J. Bauer, Richard A. Posner and John Daniel Tinder sat on the panel for the Seventh Circuit.

The plaintiffs are represented by Gingras Cates & Wachs’ Michael Luebke and Robert Gingras as well as Axley Brynelson LLP’s Michael Modl and Timothy Edwards.

DirectSat was represented in its appeal bid by Miguel Estrada and Scott P. Martin of Gibson Dunn & Crutcher LLP and Eric J. Bronstein, John P. Elliott, Colin D. Dougherty and Gregory S. Voshell of Elliott Greenleaf.

The case is Espenscheid et al. v. DirectSat USA LLC et al., case number 3:09-cv-00625, in the U.S. District Court for the Western District of Wisconsin.

–Editing by Jonathan Jacobson.

April 4, 2011/by Gingras, Thomsen & Wachs, LLP