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Management-Side Labor and Employment Law 

 Client Alert                                                 

 Wisconsin                                                August 2018

Seneczko, Alan
Alan E. Seneczko
Intent to Discriminate No Longer Inferred From Conduct Caused By Disability
By:  Alan E. Seneczko, Esq.
Over the last several years, the Wisconsin Labor and Industry Review Commission ("LIRC") has developed a maddening interpretation of the Wisconsin Fair Employment Act as it relates to disability discrimination; that is, if the conduct that prompted an employee's discipline was caused by a disability, then taking action based on that conduct is an act of discrimination, regardless of whether the employer was aware of the connection between the two. For example, if an employee with a known mental disability tells his supervisor to "stick it" and is then disciplined, but later contends his conduct was due to his disability, LIRC has found that disciplining the employee because of his conduct is tantamount to disciplining him because of his disability, and therefore a violation of the WFEA.
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Absenteeism and Proof Of "Misconduct"
By:  Alan E. Seneczko, Esq.
The Wisconsin Unemployment Compensation Act defines "misconduct" to include "absenteeism on more than 2 occasions within the 120-day period before the date of the employee's termination, unless otherwise specified by [the] employer in an employment manual [which the employee has acknowledged receiving]." Wis. Stat. ยง 108.04(5)(e). What if the employer's attendance policy defines excessive absenteeism, and grounds for termination, in a manner that is more restrictive than "2 occasions in a 120-day period?" Is it still "misconduct" for unemployment purposes?

If you have any questions about the Wisconsin Fair Employment Act, criminal conviction discrimination, worker's compensation, non-compete agreements or any of the above articles, feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.
Wessels Sherman
1860 Executive Drive, Suite E-1
Oconomowoc, WI 53066
Ph. 262-560-9696
Fax 262-560-9677
WS Wisconsin Client Alert is a complimentary newsletter published for clients and friends of Wessels Sherman. We reserve the right to limit distribution of our materials to representatives of management. The materials in this newsletter have been abridged from a variety of sources and are not necessarily applicable to a particular situation. The contents of this mailing should not be construed as legal advice. State Laws vary. Readers should consult with legal counsel before taking any action on matters covered by this mailing.