Lawyer to Lawyer Newsletter
July 2016
Dedicated to providing fellow lawyers, as well as accountants and other business advisers, with the latest news on the developing law of the workplace, written by nationally recognized lawyers who are committed to representing employers exclusively in matters of labor, employment, immigration and human resources law.
From the Desk of James B. Sherman, President/CEO:
Buried in the new recordkeeping rule from the Occupational Safety and Health Administration (OSHA), are provisions likely to affect many if not most employers who do drug and alcohol testing of employees in Minnesota.  State law, specifically the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA), prohibits any testing in the absence of a written policy distributed to employees in advance of any attempt to test.  As a result Minnesota employers doing drug or alcohol testing have (or by law should have) in place a detailed written policy that is compliant with the DATWA's very stringent requirements. Among other things, policies must specify how and under what circumstances testing may occur; e.g. pre-hire, reasonable suspicion, and limited use of random testing.  Unfortunately, the OSHA's soon-to-be-implemented recordkeeping rule contains provisions that are forcing employers to reevaluate and revise their written policies to comply with certain new requirements. With the new rule set to take affect August 10, 2016, employers that have not already done so have little time to address these new requirements.

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Machinist Union Pension Fund and Its Trustees Accused of Misusing Retirement Monies
The federal court for the District of Columbia has ordered trustees of the International Association of Machinists National Pension Fund, to repay $200,000 to the fund, plus an additional $40,000 as a civil penalty.  As recently reported by the U.S. Department of Labor, the fund and its trustees were sued by the Secretary of Labor for alleged violations of the Employee Retirement and Income Security Act (ERISA). The lawsuit accused the trustees of breaching their fiduciary duties to the IAM Union Pension Fund participants and beneficiaries by, among other things:
  • Unlawfully soliciting and accepting gratuities from plan service providers.
  • Spending/permitting others to spend fund assets lavishly on unnecessary trips, parties, extravagant food, wine and accommodations.
  • Creating conflicts of interest and failing to select plan service providers in the best interests of participants and their beneficiaries.
Employer Liable for Terminating Employee for Refusing to Share Tips, Under Minnesota Fair Labor Standards Act
Generally employment in Minnesota is at-will, meaning that either employer or employee can terminate the employment relationship at any time, for any lawful reason.  However, there are limits to at-will employment, including terminations on the basis of unlawful discrimination, retaliation for making a protected complaint, or according to a recent Minnesota case, refusing to share tips. 

The Minnesota Fair Labor Standards Act (MFLSA) makes certain employer actions unlawful.  Most commonly known are those provisions that require that employers pay minimum wage and overtime for most types of employees.  However, the MFLSA also contains several other provisions, including one that "prohibits an employer from requiring an employee to contribute or share a gratuity . . . with the employer or other employees."  The court determined that an employee who was terminated because his employer felt he wasn't properly sharing his tips with other staff, was fired illegally, and entitled to backpay. 

Reminder: Minnesota's Minimum Wage Increases August 1st
Effective August 1, 2016, Minnesota employers are subject to a new minimum wage:
  • $9.50 per hour for large employers (i.e., any enterprise with an annual gross revenue of at least $500,000.00); and
  • $7.75 per hour for small employers (i.e., any enterprise with an annual gross revenue of less than $500,000.00), 90-day training wage for workers under the age of 20, and youth wage for workers under the age of 18.

Wessels Sherman President and CEO, James Sherman, has once again been selected for inclusion in the Minnesota Super Lawyers list, in 2016. Fewer than 5% percent of lawyers are chosen for this honor. 

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  Watch for Jim's listing when it appears in the August  2016 Minnesota Super Lawyers Magazine, Mpls. St. Paul Magazine, and Twin Cities Business Magazine!
Expanded Workshop Helping Employers Prepare for New DOL Overtime Rule
Presented by Wessels Sherman shareholders 
James B. Sherman, Esq. and Sean F. Darke, Esq. 

Due to the success of our initial, timely webinar on the new Department of Labor Overtime Exemption Rule, we are hosting an  extended workshop to prepare you for the changes coming when the rule goes into effect December 1, 2016.  

Cost:  $100 per person  
Location: Online

About Us
We regularly work with other lawyers, accountants and business advisers as a trusted resource for their clients, whether as co-counsel, local counsel (from any of our 5 offices in MN, WI, IL or IA), or referrals in our concentrated area of practice. Your client relationships as a referring professional are highly respected. Our goal is to provide your clients with exceptional and cost conscious representation in our concentrated area of practice.


James B. Sherman, Esq.
Wessels Sherman
Contact James Sherman at:
(952) 746-1700