Tuesday, December 20, 2016

Join Us! Managing Change Under A New Administration: 2017 Employer Empowerment Seminar

Join business professionals from throughout the Midwest on April 28th, 2017 at Radisson Blu - Mall of America, for a full day of presentations on all the latest labor, employment and workplace legal developments from our experienced lawyers from the Wessels Sherman offices in Minnesota, Wisconsin, Illinois and Iowa! 
Among the cutting edge topics to be addressed:
  • New State and Federal Laws, Regulations and Key Court Decisions Impacting the Workplace in 2017.
  • Wage and Hour Developments Under the DOL. 
  • Pregnancy Accommodations and Best Practices. 
  • What Will Become of the Affordable Care Act in 2017?
  • Emerging Issues on Classifying/Misclassifying Independent Contractors. 
  • Managing Mental Health Issues in the Workplace. 
  • Assessing the NLRB Under a New Administration. 
  • Best Practices for Hiring, Disciplining and Firing. 
  • Employing Immigrant Workers: USCIS and EEOC Concerns. 
  • The State of Labor Unions in 2017. 
 When: Friday, April 28th, 2017 from 8:00am to 4:30pm
Where: Radisson Blu - Mall of America
Cost: $200 - First person, $125 Each additional person from same company
EARLY BIRD SPECIAL: Register and pay before January 31st for $25 dollar off per registrant ($175 - First person, $125 Each additional person from same company)
Who Should Attend: This seminar is for anyone involved in any aspect of the employer/employee relationship - business owners, executives, HR professionals, in-house lawyers and outside counsel, accountants and business consultants. It is also valuable training for all supervisors.
Click the link below for more information or to RSVP!

Register Now! -- Get more information


Wednesday, March 16, 2016

SWEEPING DOL OVERTIME EXEMPTION CHANGES ARE COMING SOONER THAN ANTICIPATED



Sean Darke, Attorney
Sean Darke
James Sherma

By: James B. Sherman, Esq. and Sean F. Darke, Esq.
Yesterday, the U. S. Department of Labor delivered to the White House's Office of Management and Budget (OMB) its final rule on the minimum salary level for exempt status from the FLSA's overtime pay requirement. The DOL sparked national controversy last summer when it issued its proposed new rule to more than double the minimum salary to qualify for the FLSA's white collar overtime exemptions.  It has been estimated that by raising the minimum salary from $23,660, to an estimated annual salary of $50,440, between 5 and 6 million American workers could be reclassified from exempt, to nonexempt status.  Review by the OMB is the final step before the final rule is made official.  Typically, this takes no more than one or two months and some are saying the White House will act even sooner. As a result, previous predictions by business groups and advisors stating that the DOL's final rule would issue in July, may be off by several months.  With the final rule now coming as early as April, 2016, any employer with employees who may be reclassified from exempt to nonexempt (and thus entitled to overtime pay) must prepare immediately for these sweeping changes, if they have not already done so.

To assess what impact the DOL's new overtime regulations could soon have on your organization and/or to develop strategies and solutions to mitigate their impact to your bottom line, contact our Wessels Sherman Wage and Hour litigation team members:

Chicago, IL: Sean Darke at (312) 629-9300 orsedarke@wesselssherman.com
Minneapolis, MN: James Sherman at (952) 746-1700 orjasherman@wesselssherman.com
St. Charles, IL:  Jennifer Murphy at (630) 377-1554 orjemurphy@wesselssherman.com
Davenport, IL:  Joseph Laverty at (563) 333-9102 orjolaverty@wesselssherman.com
Milwaukee, WI: Alan Seneczko at (262) 560-9696 oralseneczko@wesselssherman.com

***Watch for our webinar on the final rule once it is made official!!!***

Tuesday, February 2, 2016

EEOC Remains Active/ Highly Aggressive in 2016

Already this year, the EEOC has introduced two very significant measures that are sure to delight plaintiff lawyers while causing serious concerns for employers and their management-side attorneys, including your friends here at Wessels Sherman.  The more troublesome new measure is the EEOC’s proposal to significantly modify the information employers must report each year as part of the agency’s EEO-1 reporting requirements.  Specifically, starting in September of 2017 the proposal is to require employers to include additional information in their annual EEO-1 reports to the government, setting out pay ranges and hours worked for their employees.  It takes little imagination to think of how a federal governmental agency such as the EEOC might use this kind of information if employers are made to disclose it, annually.  Another new proposal involves new guidelines on retaliation prohibited under the various laws administered by the EEOC, such as Title VII, ADA, ADEA and EPA.  These guidelines are designed to educate the public on how the EEOC views retaliation claims, which continue to be the fastest growing type of claim filed with this agency.  No doubt they also will educate more plaintiffs on how to sue.  

According to the EEOC the additional data gathered under its proposed new EEO-1 reporting requirement, would be used to assess discrimination complaints of all types (race, sex, age, disability, religion, national origin, etc.).  If in the course of such investigations it identifies any pay disparities in the employer’s EEO-1 reports, the EEOC would expand its investigation to include scrutiny of the employers wage and hour practices. Under this scenario, while investigating an individual applicant’s or employee’s charge of discrimination the EEOC would look at the employer’s EEO-1 reports for any indication of disparity among all employees regarding pay or hours worked.  The data could be used to launch a full-scale investigation into potential “systemic pay discrimination,” followed by class-action claims in the discretion of the EEOC’s investigator and Regional Director.  Obviously, if the proposal goes through and employers are required to disclose pay and hour ranges in their annual EEO-1 reports, employers can expect more lawsuits along with dissemination of information that is otherwise regarded as proprietary and confidential.  

The EEOC’s proposed revisions to its guidance on retaliation claims are the first since 1998.  This new guidance broadens the definition of the sorts of “adverse employment actions” employees can challenge as the basis for a claim of unlawful retaliation.  For instance, terminating an employee has always been regarded as the consummate unlawful “adverse employment action” if done in retaliation for an employee’s exercise of rights under Title VII, ADA, ADEA, etc.  But what if an employee claims retaliation based on less severe actions, such as denying a requested vacation, or being spoken to more harshly by a supervisor?  Different courts have addressed this question with different results and, as one might expect, the EEOC’s proposed definition is very employee friendly, and even includes non-work related actions, as long as they might deter reasonable individuals from engaging in protected activity.  In addition, the proposed new guidance attempts to usurp the role of courts to determine how evidence is weighed to prove retaliation by connecting an employee’s protected activity (e.g., complaining of discrimination, participating in an investigation, etc.) to a challenged adverse employment action.  This guidance states that an employee can discredit the employer’s explanation for taking the adverse action and show a causal connection between the protected activity and the adverse action through a “convincing mosaic” of evidence that would support a claim of retaliation.


Both of these actions are just proposals at this point, and interested employers and other parties can submit comments before any final action is taken.  Comments will be accepted on the pay data proposal through April 1, and on the retaliation proposal through February 24.  Employers are advised to use 2016 to audit in preparation for the possibility that employers may be essentially open to inspection by the federal government, in 2017.

Questions? Contact Mr. Sherman at (952) 746-1700 or at jasherman@wesselssherman.com. 

Wednesday, January 27, 2016

Five Essential New Year Resolutions Every Employer Should Have for 2016

With the new year underway there are a number of resolutions employers of all sizes and industries should act on if they wish to avoid winding up in the crosshairs of governmental workplace watchdogs bent on expanding their influence in 2016.  Here are 5 highly recommended areas deserving of employers’ immediate attention:

1.    Avoiding “joint employer” status and liability under newly adopted standards –

Last year, the National Labor Relations Board (NLRB) overhauled the test to determine whether two (or more) employers are “joint employers” for purposes of labor law, with its Browning-Ferris Industries decision.  The new test makes it much easier to establish joint employer status and is now being used to pursue claims against McDonald’s Corp. for the actions of its franchisees.  The NLRB’s test is being used to hold multiple employers liable for unfair labor practices committed by one, as in the case of McDonald’s Corp. as a joint employer with its franchisees.  Joint employer status may also be used to impose collective bargaining and union contract obligations, as well as determining whom can be subjected to picketing and other strike activity or economic pressure, from unions. 

The Department of Labor (DOL) recently issued its own definition of “joint employers,” amid allegations from some United States Congressmen of collusion between the two agencies.  Although some of the factors in the two tests are similar (the DOL definition is actually broader than that of the NLRB), the consequences of finding a joint employer relationship by the different agencies differ significantly.  The DOL’s guidance is relevant for the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA).  Under these laws, the hours worked for joint employers will be aggregated for purposes of determining if an employee has worked overtime during a workweek.  In either case, both joint employers will be jointly liable for any violations under these laws.  

Because of the severe ramifications at stake and the current heightened focus on the issue, we highly recommend that employers make the New Year’s resolution of auditing any potential joint employment relationships with the help of someone knowledgeable in these areas.   

2.    Ensuring those regarded as “independent contractors” are not employees, again, under newly adopted standards –

Last summer the Department of Labor (DOL) issued a new interpretation of when a worker is an independent contractor rather than an employee for purposes of wage and hour requirements under the Fair Labor Standards Act (FLSA).  According to the new interpretation, the key question is whether the worker is economically dependent on the employer or in business for him or herself, and can be determined by considering several factors.  The DOL boldly stated that under its new analysis, “most workers will be considered employees rather than independent contractors.” 

Workers that might be reclassified under this interpretation as employees rather than independent contractors could include subcontractors, salespeople, drivers, cleaners, nurses and caretakers, etc.   Companies that use these types of workers risk being held liable for tracking hours and paying minimum wage and overtime under the law.  Additionally, the DOL has signed an agreement with the Minnesota Department of Labor and Industry to share information and to coordinate investigations and enforcement with regard to the misclassification of workers as independent contractors.  Unwary companies could find themselves taken by surprise with liability under a number of laws for their assumed “independent contractors” when the DOL defines these workers as employees under its new stringent standard.

Given the DOL’s war on independent contractors, once again an audit of these relationships is in order. 

3.    Thoroughly preparing for anticipated changes to exempt vs nonexempt status and the explosion of rest break and meal wage/hour claims –

American businesses are bracing in 2016 for the DOL to issue its final regulations on minimum salary levels for white-collar exemptions, which potentially could convert over 6 million workers from exempt to non-exempt hourly employees, regardless of their exempt duties.  Proactive business and Human Resources professionals are auditing their current exempt employees and preparing contingency plans to deal with these regulations.  In the meantime, however, the onslaught of class action wage and hour lawsuits continues, unabated.  In addition to overtime suits based on employee misclassifications under the state and federal FLSA, claims of employers mishandling meal and rest breaks are proving to be fertile ground for plaintiff lawyers. 

Given the explosion of wage and hour lawsuits, coupled with what could well be monumental changes in employee classifications necessitated by the DOL’s regulations expected to issue sometime this year, resolving to conduct an internal audit of employee pay practices is one New Year’s resolution every employer ought to have high on its “to do” list.

4.    Becoming politically active to oppose an onslaught of proposed anti-business legislation (2016 is, after all, an election year) –

In the current Minnesota legislative session, among the more controversial proposals to impact employers, include:

·         Outlawing an “abusive work environment” (i.e., bullying), and providing a private cause of action for employees to bring a lawsuit.  While most employers oppose bullying in their workplaces, most lawsuits do not have merit, and this right to a private cause of action would allow employees to bring lawsuits for frivolous claims of bullying;
·         Imposing fines on employers for discriminating against unemployed individuals;
·         Preventing employers from providing different pay or benefits to employees based on the number of hours worked;
·         Impinging on employers’ ability to set and change work schedules, as needed; and
·         Providing for paid family leave, as well as earned “sick and safe time,” which would allow the employee to use the earned leave for absences caused by the illness or injury of the employee or the employee’s family member, or for domestic abuse, sexual assault, or stalking of the employee or the employee’s family member.

Employers who oppose these intrusions into their operations should resolve to become active in their local business groups in 2016 and otherwise contest these and other similar pieces of legislation.

5.    Updating employee handbooks or policies, especially any that are 2 years or older; chances are they are seriously outdated –  

The passage of the Women’s Economic Security Act brought several changes to Minnesota law within the past two years—including a new law requiring language relating to employees’ rights to discuss and disclose their compensation to be included in employee handbooks, and changes to Minnesota’s parental leave law and the Minnesota Human Rights Act, as well as a new law regarding pregnancy accommodations—leave many employee handbooks with out-of-date or illegal policies.  Additionally, several federal agencies—most notably the National Labor Relations Board—have been increasing their scrutiny of many common handbook policies, such as provisions regarding confidentiality, e-mail use, social media, use of cameras and recording devices, communications with the media and other parties, conduct toward the company and supervisors, and more. 

Any employee handbooks that have not been updated within the past 2 years, with these important new legal developments in mind, can be presumed to be outdated and should be reviewed and revised ASAP.


Contact the experienced attorneys of Wessels Sherman for help with auditing and compliance measures as part of your company’s 2016 resolution to keep up with the developing law of the workplace.  In many cases an hour or two of legal “prevention,” can be worth much more than what it may take to “cure” problems down the road.  To arrange a free discussion of your issues with an experienced attorney and get a proposal or quote of the cost to address them, please email or call Ms. Christine Beggan at (952) 746-1700, or email her at chbeggan@wesselssherman.com.