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August 2018 Archives

DOL Issues Six New Opinion Letters

On August 28, 2018, the Department of Labor, Wage and Hour Division, issued six new opinion letters on issues under the Fair Labor Standards Act and Family Medical Leave Act. They are summarized below:

Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA

Administering employee leaves of absence is complicated. For employers of 50 or more employees there obviously are the Family and Medical Leave Act (FMLA) and D.O.L. regulations to deal with. Then there is the EEOC, which has interpreted the Americans with Disabilities Act (ADA) to require leaves of absence, or extending them under certain circumstances as a reasonable accommodation of an individual's disability. Add worker compensation laws that provide for reinstatement of employees following a work-related illness or injury, as well as an ever growing list of other federal, state and, more recently, local laws governing what employers may or may not do about employee absences and even the most experienced HR professionals have their hands full. Monitoring FMLA leave (especially intermittent leave), work-related absences, military leave, leave as an accommodation and all the legalities of when and how to return workers from such leaves, can be overwhelming. Not surprisingly, many employers have turned to outsourcing these functions, ostensibly to avoid all the hassles and legal pitfalls they present. However, as a recent U.S. Court of Appeals decision demonstrates all too clearly, turning these responsibilities over to a third party does not rid an employer of responsibility, or liability, for complying with the many workplace leave laws that are at play.

Why a Handbook? The Necessity of Having an Employee Handbook

An employee handbook provides communication between employer and employee. It sets forth the requirements for employees and notifies them what they can expect from your Company as to legal obligations along with employee rights. Also, a written Equal Employment Opportunity statement gives protection to employers.

No Fault Attendance Policies

It has become a "sign of the times" that many Employers, rather than attempting to negotiate the maze of potential Legal Issues with regard to Employee Absences for sickness, child care, etc., have gravitated to what has become identified as the "No Fault Attendance Policy". Under a No Fault Attendance Policy, Employees are assigned certain points for absences regardless of the reason for those absences, and are terminated after they have accumulated enough points to generate termination and, in some cases, have exceeded the maximum number of days absent in a "No Fault Absence Policy" during a calendar or running twelve (12) month period. Employers believe that this is a very efficient way to maintain neutrality and to avoid asking people the reasons for their absences. Unfortunately, it seems that the Equal Employment Opportunity Commission is taking a very staunch position of disagreement with this concept.

New York City Places Caps on Uber and Lyft!

Creating a brave new world for taxi and limousine service companies, Uber and Lyft introduced their ride-hailing services approximately six years ago. Time has passed and now urban policy makers are shocked at how these very convenient and popular ride-hailing services have quickly changed transportation options in cities like New York City.

Labor News

As our readers know, a significant portion of our practice here at Wessels Sherman is devoted to representation of employers in cases involving labor unions. This runs the full spectrum from remaining union-free to dealings with organized labor involving negotiations, arbitration, strikes, picketing, boycotts, and virtually all matters coming under the general description of labor-management relations. In connection with this we keep a close eye on what is happening with labor unions. Here is an update:

It's Easier for Illinois Employers to Win Before the IDES on Cases involving Misconduct

This article is to remind Illinois employers about an important amendment to the Illinois Unemployment Insurance Act (which took effect over two years ago on January 3, 2016). The amendment broadened the misconduct definition by adding eight work-related behaviors which automatically disqualify the Claimant (i.e., ex-employee who filed for unemployment insurance benefits) from receiving unemployment insurance benefits due to misconduct.

Governor Rauner Vetoes Expansion of Some State Anti-Discrimination Laws Which Would Have Included Small Illinois Employers (Less Than 15 Employees)

Good news for Illinois employers!

Absenteeism And Proof Of "Misconduct"

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. § 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?

Intent To Discriminate No Longer Inferred From Conduct Caused By Disability

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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