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Wessels Sherman Labor and Employment Law Blog

Rumors of "Sleeping Your Way to the Top" Can Constitute Sex Discrimination

It remains an unfortunate, though persistent, stereotype in our society that women who advance in the workplace, especially those who do so rapidly and have a male superior, do so not by merit, but rather, because of a sexual relationship with their superior. In other words, they only obtained the position because they are "sleeping with the boss." When such false rumors and gossip persist - and are even advanced by other managers, can they form the basis of a claim for sex discrimination? The Fourth Circuit Court of Appeals just determined that they can.

States Vary Widely In Their Respective Independent Contractor Legal Tests

ROLE OF STATE LEGISLATURE: Surprising to many, state legislatures solely determine the legal test that is used in a particular state for evaluating whether a "worker" in question is an independent contractor or an employee (for purposes of obtaining state unemployment insurance benefits).

DOL Rolls Out Proposed Overtime Revisions

In May 2016, the Department of Labor issued its controversial revisions to the white collar exemptions of the overtime regulations, more than doubling the minimum salary required for exemption; going from $455/wk. ($23,680/yr.) to $913/wk. ($47,476/yr.). A court in Texas subsequently found the rule invalid, and employers have been awaiting the Trump administration's position on the issue ever since. The wait is now over, at least at the moment.

Illinois Supreme Court's Decision on Biometric Information Privacy Act Opens Door to More Litigation

The Illinois Biometric Information Privacy Act ("BIPA") is yet another Illinois law drafted with ambiguities which beg, unfortunately, for litigation. Where a statute is drafted with holes of ambiguity, (and this one has many), it is up to the judiciary to fill those voids, and that, of course, means costly litigation. One ambiguity was recently clarified by the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation. 2019 IL 123186. Rosenbach is bad news for employers.

Twelve Commonly Asked Questions About Non-Compete Agreements In Illinois

Illinois is a state where non-compete agreements can be enforceable if done with certain guiding concepts and wording. The following are the most common questions asked by Illinois clients who are considering the use of non-compete agreements:

Illinois Legislature Fast-Tracks Minimum Wage

Certainly the beginning of the Legislative Session in the State of Illinois during calendar 2019 is attempting to move quickly on the campaign promises of J.B. Pritzker. As everyone will recall, the recently elected Governor's campaign pledge to increase the state's minimum wage has been fast-tracked with the passing, by the Illinois Senate of the "Lifting Up Illinois Working Family's Act" and sending the bill to the State House of Representatives. The Illinois House of Representatives passed the bill on Valentine's Day, February 14, 2019, by a vote of 69-47-1. The bill was signed with extensive media coverage by Governor Pritzker on February 19, 2019.

Breaking News: Minimum Wage in Illinois set to Increase to $15 by 2025

Last week we reported that a new Illinois Minimum Wage law is all but certain to pass before the end of February. A $15 per hour minimum wage bill was introduced and had the support of newly elected governor J.B. Pritzker.

"Shame on You" Strategies

Construction industry unions, particularly Operating Engineers Local 150, continue to use the strategy which we regularly refer to as "rats, banners and street theater". They rely on the 2010 Eliason & Knuth NLRB case which gives unions pretty much a green light to engage in secondary boycotts as long as they are not picketing. That Obama Board decision relied primarily on free speech theories. The normal union strategy is to put up a large rat at the premises of a neutral employer that says something like "Shame on You". In other words, there is disruption and demonstration in front of the neutral employer's premises and the whole objective is to have that neutral stop doing business with the primary. For unions, it is a way around the secondary boycott provisions of the National Labor Relations Act. But, with the new pro-business Board now in place, it is likely that this strategy will have a pretty short life expectancy. We anticipate that once the new Board finds an appropriate case they will overturn Eliason & Knuth and find this type of activity to be an illegal secondary boycott. Below is a picture of a typical Eliason & Knuth scene.

Revisit the "Rat"

The author is fairly certain that a vast number of the readers of this Article have either seen or unfortunately been involved in a case where a union has placed signage and the RAT at an employer's premise to force the employer to "cease doing business with or supplying another employer with raw materials (i.e., stone, sand, gravel, piping, etc.)" with which the union has a labor dispute. The Obama Labor Board (NLRB) has found this type of activity to be "Free Speech" protected by the First Amendment and exempt from the prohibitions of a "Secondary Boycott."

New Prime Loses In Its Attempt To Compel Arbitration In Interstate Trucking Case

On January 15, 2019, the U.S. Supreme Court issued a decision in New Prime Inc. v. Oliveira, a case concerning the enforceability of arbitration agreements in the interstate trucking sector of our economy.

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