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James A. Walcheske

James Walcheske’s Answers

94 total


  • In Wisconsin can an employer terminate an employee who took an extended funeral leave?

    I am the manager of an 8 employee private practice office in WI. An employee left the office abruptly on Tues Nov. 10th as she got notice her father was dying in Penn. He passed away the next night. Funeral took place the evening of Thurs. Nov. 19...

    James’s Answer

    Remember that Wisconsin is an at-will state, meaning that an employee can be terminated for any reason whatsoever, so long as it isn't discriminatory or otherwise against public policy. If an employee is not communicating with you and keeping you informed of her status, that employee can be terminated, unless other factors are present, such as FMLA eligibility, which would depend on the size of the company.

    With respect to unemployment, she would be eligible due to her termination, but that does not mean she would be awarded benefits. Under current unemployment standards, if an employee is at fault for the termination, then she will generally be denied unemployment compensation. Assuming she files, you/your company would go through the process and be informed of the outcome (either benefits are granted or denied). If benefits were granted and you/your company wished to contest that determination, you/it would be free to do so.

    If you have questions about any of this or you'd like to discuss this further, you should contact an attorney or firm that handles employment-law matters, such as me/my firm.

    Hope that helped.

    James A. Walcheske
    Walcheske & Luzi, LLC
    www.walcheskeluzi.com

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  • An employee filled out several formal complaints and made staff sign their names to them. Is this legal?

    One employee has been accused of coming in and starting a fight with a coworker then sexually harassing a customer. Following up on the formal complaints I found no one actually witnessed the harassment and a coworker filled out the forms and had ...

    James’s Answer

    Following up with what others have said, you have to be sure that you do a thorough and proper investigation and act accordingly because you're not only dealing with a potential sexual harassment issue with respect to the accused, but also a potential retaliation issue with respect to the accuser. It would be best to consult with an employment law attorney/firm to talk through the situation. Whether that be us or another firm, we wish you the best of luck with this.

    James A. Walcheske
    Walcheske & Luzi, LLC
    (920) 757-2440
    Jwalcheske@walcheskeluzi.com

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  • Employee was given raise going from casual to full-time. Can the raise be taken back if they want to go back casual and how?

    Employee was given opportunity to go full-time from casual. She accepted the change in hours/status and was given a raise due to going full-time. She worked full-time about a month and then put 2 week notice in to go back to casual again. Can the ...

    James’s Answer

    An employer can set an individual's wage, so long as the individual is being paid at least minimum wage and is being paid for all hours worked. If you provided the raise in connection with the change to full-time status, you are fully able to reduce the wage back to what the individual had been receiving as a casual employee, once that employee reverts back to casual status.

    Long story short - it is not unlawful to reduce an employee's wage, so long as the motivation for so doing is not unlawful in and of itself.

    Hope that helped.

    James A. Walcheske
    Walcheske & Luzi, LLC
    www.walcheskeluzi.com

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  • Will wells Fargo deny me for a background check for employment for a shoplifting incident?

    I don't remember if I was charged and it doesn't show up on public records.

    James’s Answer

    There is a huge difference between arrest and conviction record laws in Wisconsin, which is a key distinction with respect to your question. If you were only arrested, but not convicted, an employer cannot use that arrest as a basis for denying employment to you. Denying you on that basis would constitute unlawful arrest record discrimination under the Wisconsin Fair Employment Act. However, if you were actually convicted of shoplifting or a related offense, there is the possibility that Wells Fargo would be able to lawfully deny you employment based on that conviction.

    Further, I do hope that you are answering the questions on an employment application truthfully. Even if you think an arrest or conviction will not show up on a background check, you need to truthfully disclose it if asked to do so. For example, if the application asked you to disclose any convictions within the last 7 years, you need to disclose any and all convictions within the last 7 years. Failure to do so will constitute falsification of your employment application and you can be denied employment based on that alone.

    If you have questions, give an employment law attorney a call, whether that be our firm or anyone else.

    Hope that helped.

    James A. Walcheske
    Walcheske & Luzi, LLC
    www.walcheskeluzi.com

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  • Can a company require that an independent contractor have a post accident drug screen after an accident.

    we require our employees to have a post accident drug screen but was not sure if we could do the same with an independent contractor.

    James’s Answer

    Yes, you can, just be careful not to reference it as being tied or related to employment, but rather necessary for the individual to continue providing services to the company.

    Hope that helped.

    If you have questions about this or anything else, feel free to ask.

    James A. Walcheske
    Walcheske & Luzi, LLC
    www.walcheskeluzi.com

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  • I have a 3rd Degree assault conviction in MN from 1995; does this bar me from becoming a Human Resources Manager in Wisconsin?

    Was sentenced to 365 days in county jail, plus five years probation (which was discharged in 2000.

    James’s Answer

    I generally agree with Attorney Witt. Convictions can be a bar to employment if the "substantial relationship" applies, which involves an analysis of the conviction and the position at issue, particularly the circumstances of the workplace and the position itself. Oftentimes these do not involve an analysis of the facts giving rise to the conviction; however, there are cases specifically relating to assault that hold that an analysis of the underlying facts of that conviction are relevant.

    As indicated by Attorney Witt, you'll want to consult with an employment law attorney (either us or someone us) to discuss your situation further, as these are fact-intensive cases that are analyzed on a case-by-case basis.

    Here's more info, if you're interested: http://www.walcheskeluzi.com/employment-practice-areas/employment-discrimination-wi/conviction-discrimination/

    Hope that helped.

    James A. Walcheske
    Walcheske & Luzi, LLC
    http://www.walcheskeluzi.com

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  • Is it legal for my boss to not pay me after the fact when I was required to work an event?

    My boss requires me to work events and after the fact of me putting in my hours he tells me that I would not be getting paid for the extra work that I was required to do. The events like meetings, and shows where not done on a volunteer basis. I w...

    James’s Answer

    Every employee must be compensated for all hours worked. The legal term is for an employer to "suffer or permit" you to be working those hours. Mandatory meetings and other mandatory events are generally compensable at your hourly rate. Of course, if those events push you over forty hours, you should then generally be compensated at 1.5 times your normal, hourly rate.

    If you are being forced to attend meetings and other events and not being compensated for that time, that likely may constitute a violation of wage and hour laws and you should consider speaking to an employment law attorney about your situation.

    Hope that helped.

    James A. Walcheske
    Walcheske & Luzi, LLC
    http://www.walcheskeluzi.com

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  • Is a small business required to pay an hourly waged worker overtime. When it is not voluntary work?

    I work for a small business. Every week I am normally scheduled anywhere from 5-15 hours of mandatory over time. I am paid hourly. Whenever I bring up my concerns I am normally quickly told that if I don't want to work the hours my boss would be a...

    James’s Answer

    Every employee must be compensated for all hours worked over 40, regardless of whether those hours worked were "mandatory" or not, just so long as the employer knows or should reasonably be expected to know what the overtime hours were worked.

    If you are working overtime and your employer is aware of it, it should compensate you for those hours at a rate of 1.5 times your regular, hourly rate. For example, if you normally receive $9.00 per hour, you should be paid $13.50 for all overtime hours worked.

    If you are working overtime, your employer is aware of it, and you are not being paid for it, that likely may constitute a violation of wage and hour laws and you should consider speaking to an employment law attorney about your situation.

    Hope that helped.

    James A. Walcheske
    Walcheske & Luzi, LLC
    http://www.walcheskeluzi.com

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  • I think i am being disciminated against

    my work place is trying to fire me because i ran out of fmla a doctor wrote that i had serious life threatening illness but now they want me to get a note saying if itis ongoing or done i had a handicapped parking permit they asked me not to us...

    James’s Answer

    More information is needed to figure out whether you have a claim and, if so, for what. From the description you provided, possible claims include disability discrimination, failure to accommodate, and Family and Medical Leave Act retaliation; however, it's impossible to say at this point.

    I would encourage you to speak with an employment lawyer/law firm in your area to discuss your situation in more detail and receive a full assessment of your potential legal claims.

    Hope that helped.

    James A. Walcheske
    Walcheske & Luzi, LLC
    http://www.walcheskeluzi.com

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  • Is it illegal for them to fire me?

    I was previously out sick from work in july, and was out for only about a week. When i brought in the doctors note they gave me a hard time about it. Now now more resently i was absent as well with a doctors note. I was only gone for 3 days. They ...

    James’s Answer

    A doctor's note in and of itself does not necessarily matter. What matters is what was covered by the doctor's note. If you have a medical condition that causes you to miss work, and your employer is aware of that medical condition, it cannot legally take disciplinary action against you based on an absence caused by that medical condition, with certain limitations and exceptions.

    I'd suggest that you contact an employment attorney near you to discuss your situation further. Whether that be us (office in Appleton) or another firm, we wish you the best of luck.

    Hope that helped.

    James A. Walcheske
    Walcheske & Luzi, LLC
    http://www.walcheskeluzi.com

    See question