E-Newsletter

July 2009

The Seventh Circuit Does Not Punish An Employer For Its Past Good Deeds

Brian M. Radloff, Esq.

The Seventh Circuit Court of Appeals recently addressed a claim under the Uniformed Service Employment and Reemployment Rights Act. In that case, a police department, for about nine years, had previously allowed its police officers who were members of the Military Reserves to work on their normal off days when they had missed their normal work days due to their mandatory military training. This flexible scheduling approach was only offered to members of the Military Reserves and did not apply to other non-military activities.

For example, if a police officer was on a Wednesday to Sunday schedule on the week that he or she was required to undertake military training on Saturday and Sunday (his or her scheduled work days) the police department had allowed that individual to then work on Monday and Tuesday (his or her scheduled off days) so that he or she did not lose the ability to earn a full time paycheck that week. During that nine year stretch, this approach by the police department was manageable due to the small number of police officers that were also members of the Military Reserves.

Later on, the police department added additional officers that were also members of the Military Reserves and due to scheduling burdens, it cancelled its flexible scheduling program for members of the Military Reserves. The police department reverted back to its uniform policy that all officers are not allowed to change their work schedules unless he or she is able to secure a consenting fellow officer to trade work days with off days.

A police officer challenged this change in the policy as unlawful under the Uniformed Service Employment and Reemployment Act. The Seventh Circuit held that the police officer had no claim for several reasons. First, the Seventh Circuit concluded that the cancellation of the flexible scheduling policy for members of the Military Reserves was not unlawful because it was not required by the Uniformed Services Employment and Reemployment Act in the first place. Rather, it was a voluntary policy by the police department done for benevolent purposes, and therefore, its cancellation cannot give rise to a violation. Second, the Seventh Circuit held that the new policy on scheduling applied to all officers. In other words, members of the Military Reserves were treated the same as non-members.

The Seventh Circuit's decision is grounded in law but also makes good policy sense. If an employer is forever required to continue to provide a benefit to its employees who are members of the Military Reserves above what is required by the law, many employers will choose to not provide that benefit at all for fear that it may be required to offer that benefit permanently in the future.

Minimum Wage Increase on July 24, 2009

The Seventh Circuit Court of Appeals recently addressed a claim under the Uniformed Service Effective July 24, 2009, the federal minimum wage increases from $6.55 per hour to $7.25 per hour. When applicable, employers may want to review their compensation policies to ensure that all hourly employees are earning (and clearing) at least $7.25 per hour as of that date.

The New Wisconsin Budget Bill Means Big Changes to Two Wisconsin Employment Laws

First, the Wisconsin Fair Employment Act has been amended, effective July 1, 2009, to permit a person who has prevailed at an administrative hearing on the merits to bring a circuit court action to recover compensatory and punitive damages. Such compensatory and punitive damages are in addition to lost wages and benefits that can be recovered at the administrative level, and the amount is capped at amounts ranging $50,000 to $300,000, depending on the number of employees working for the employer. This amendment applies to acts of discrimination that occur on or after July 1, 2009.

Second, the Wisconsin Family and Medical Leave Act has been amended, effective July 1, 2009, to include domestic partnerships. The amendment permits an employee up to two weeks of leave in a calendar year for the serious health condition of a domestic partner or domestic partner's parent. The amendment defines domestic partner to include individuals who file "declarations of domestic partnership" in their county of residence and individuals in less formal "domestic partnerships."

For more information contact Krukowski & Costello, S.C.'s educational services department at (414) 988-8400.