Skip to main content
Matthew L. MacKelly

Matthew MacKelly’s Answers

14 total


  • WI employment law, employee's right to appeal denied complaint against supervisor

    I have filed 2 complaints against my supervisor, for showing favoritism in the worlplace. They were both denied. She also has used inappropriate language in the workplace, and actually lowered her pants at work to show off her tatoo. My HR deptart...

    Matthew’s Answer

    This is a question that requires many for facts before a truly substantively accurate answer can be given. However, if I was to assume that this is a matter of some sort of protected harassment (e.g., sexual, racial, religious, disability-based, etc.), and the HR department has done nothing, then your best options to protect your rights include talking to a lawyer and/or filing a complaint with the Department of Workforce Development Equal Rights Division. Frankly, if you have a genuine case, your rights are more likely be better protected if you seek the counsel of a lawyer prior to filing such a complaint because a lawyer's assistance will likely include the proper language if the complaint is filed.

    Alternatively (and sometimes, preferably), you can retain a lawyer with a goal of "pre-termination" or "pre-adverse action" intervention (if the statute of limitations gives you enough time to do this prior to filing a complaint with the ERD). A lawyer may be able to put the employer on notice that you are seriously concerned about the infringement of your rights by the allegedly wrongful acts by the supervisor. Sometimes a matter can be resolved with the employer without too much work.

    Also, by saying "My HR department will do nothing," I am concerned that you have not reported your complaints to HR because you assume HR will do nothing. If so, you should report the inappropriate conduct regardless of whether you believe HR will take action.

    See question 
  • WI employment law

    I have files 2 cases of favoritism against my supervisor at work. Both were supposedly investigated and dropped. She also uses inappropriate language in the workplace, and actually lowered her pants in front of me to show her tatoo. Do I have any ...

    Matthew’s Answer

    Unfortunately, this is a question that requires substantially more questions before a truly informed answer could be given. Based solely on what you've written, it appears there could be some that of sexual claim under Wisconsin law, such as sexual harassment, some other type of gender-based discrimination, and/or sexual orientation discrimination (depending on your sexual orientation). This answer is entirely speculative, however, since the questions does not include most of the relevant facts needed to provide a "better" answer.

    See question 
  • Chief of fire dept. changed reason for termination

    can a firefighter be terminatied for becoming a felon (owi 5th offense) milwaukee, wi

    Matthew’s Answer

    The answer to part this question may depend on your CBA. Otherwise, a general application of anti-discrimination statutes in Wisconsin would reflect that, if a motivating factor for the termination was the criminal conviction, there may be evidence of discrimination based on conviction record. Unless the crime is substantially related to the job, then there may be a violation of the Wisconsin Statute Secs. 111.321 and 111.322. There is more that goes into the analysis as conviction record discrimination is a very fact intensive task, but this is a general start.

    See question 
  • Equal Oppurtunity and Discrimination

    I have been with my current company for 2 years. I started in HR and was moved into a training and development role in March 2008. At that time I was told I would move back into HR in 6 monthes, according to my succession plan. However in the pa...

    Matthew’s Answer

    You may have options for help available to you, but, in my opinion, that cannot accurate be determined based on the facts you have stated. I am definitely suspicious and/or curious about your statement that "I am feeling it has more to do with appearance and what I am not willing to show" and what that statement means. This statement seems to imply that you believe there may be discriminatory motivations, but I cannot tell based on what you've said. Other than that, I can definitely say that the company has no obligation to tell you why it is replacing you/terminating you. Unfortunately, I do not believe it would be responsible for me under my rules of professional responsibility to go any further at this time based on what you have stated.

    In any event, particularly if you believe the reason for terminating you may involve any discriminatory motivation, you should contact an attorney as soon as possible.

    For informational purposes, I've included a link to the Department of Workforce Development Equal Rights Division (although you presumably know much of this due to being in HR).

    See question 
  • Small claims... Never received work check

    I worked an assignment for a staffing agency and it was about a week long in the beggining of October.It is no wgoing on the second week of November and I still have no check. I have constantly called and contacted the agency and they keep giving ...

    Matthew’s Answer

    Whether you want to make it into "a case" is up to you. Based on the facts you present, there appears to be a violation of state and federal wage-and-hour laws. You should have been paid everything you earned on your regular pay date. You could file a small claims complaint or you can file with the state's Labor Standards Bureau. I'd have to double check, but I believe that, if this is held to be a wage-and-hour law violation, you might be eligible for double damages (that is, the amount the employer owed you, plus that same amount as statutory damages). You might also be able to get attorney fees. (You may want to call Attorney Larry Johnson at 262-548-0001 to confirm this response, just let him know that I referred you to him.)

    If you were considered an independent contractor, the entire analysis may change.

    See question 
  • Resposible for damage

    If a person driving cuts you off (left turn in front of you). And I was able to stop before they hit me but the stuff in the back of the vehicle got damaged and when it moved it damaged my vehicle. Can I hold them responsible since they did not yi...

    Matthew’s Answer

    I'll agree with Attorney Davidson that you generally have a legal claim against the driver under one or more provision of the "Rule of the Road" sections to which he alluded. If you know the identify of the driver (or the vehicle, e.g., the plate number), then you could sue the driver and/or the driver's auto liability insurer (under Wisconsin law). If the the two vehicles had made contact or part of the other driver's vehicle damaged your vehicle, and the other driver drove away and was not identified, then it was a "hit-and-run" driver and you could file a claim under your auto insurance policy's uninsured motorists coverage provisions, if you have "UM" coverage.

    Similar to what Mr. Davidson was getting at I think, if the driver drove away and was not identified, and there was not any physical contact at all (in other words, the only damage came from the internal damage from property within the vehicle) you would not likely be able to recover because this is known as a "miss-and-run." Auto liability Insurance policies generally do not cover "miss-and-run" damage. But, if you added more information, there might be an exception in your case.

    See question 
  • I suffered spinal injury and am trying to work do I have any legal rights under ADA or OSHA

    I have had cervical fusion of vertebra 4-7. I now have cervical spinal degeneration with myapathy. I am trying to continue working at my receptionist position,but my doctors have given me restrictions of no lifting and ability to get up, stretch ...

    Matthew’s Answer

    With regard to breaks during work hours, federal and state "wage & hour" law governs these matters. As for needing breaks or something else in addition to what the law provides, depending on the nature of your condition and your doctor's recommend, the employer may be required to provide a reasonable accommodation for your under the federal ADA or the Wisconsin Fair Employment Act. At the very least, after consulting with your doctor, you should may need to ask for an accommodation and the employer is required to engage in an "interactive process" to help determine if the two of you can work out an accommodation.

    Here are some links, but you should consult an attorney skilled in both wage & hour law and ADA-type issues.

    See question 
  • Surgery gone wrong

    I live in Wisconsin I had a total right hip replacemnt surgery in June of 2008, my leg is numb from the knee down to the tips of my toes and have drop foot. My Dr. put in a 3/8 extension in the leg because when I had the left hip done that leg be...

    Matthew’s Answer

    You may want to give Attorney Jon Groth a call. I highly recommend him. I've linked his info below.

    See question 
  • Harassing Phone Calls

    I keep getting calls, (4 to 6) a day, from a credit collection agency that keeps asking for someone who isn't me. I tell them they have the wrong number in their database and it should be removed. I've asked for the manager, but there never is o...

    Matthew’s Answer

    I would initially do two things. First, take a look at the consumer protection/telemarketing link I put in below this answer. 1-800-422-7128 should be the Consumer Protection number. They should be able to help you file an administrative complaint and give information about the federal version.

    Also, I don't practice with an emphasis in debt collection, but it could be possible that the credit card companies are calling in violation of the Fair Debt Collection Practices Act. So, I'd look for a lawyer representing consumers in that area, like Attorney P. Jeffrey Archibald in Madison, WI at (608) 661-8855. He is highly recommended.

    See question 
  • Can my employer fire me for being gay under Wisconsin employment and discrimination laws

    can empolyee fire me for my sexuality

    Matthew’s Answer

    Wisconsin Statute Section 111.321 -- Prohibited bases of discrimination. Subject to ss. 111.33 to 111.36, no employer, labor organization, employment agency, licensing agency, or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, or use or nonuse of lawful products off the employer's premises during nonworking hours.

    111.321 - ANNOT.
    NOTE: See 111.36 for definition of sex discrimination.

    Wisconsin Statute 111.36 is a bit lengthy, so the link follows, with citations to "sexual orientation" and annotations to the statute.

    See question