April 2023 Client Alert

Client alert

April 2023

DOL Opinion Letter Says Employees Can Use Intermittent FMLA Leave Indefinitely to Avoid Overtime or Hours That Are An Essential Job Function

By James B. Sherman, Esq.

Many jobs require regular overtime or some minimum number of hours per day or week. If working a certain number of hours amounts to an essential function of a job, employees or applicants who cannot work those hours are generally unqualified. Even under the ADA, excusing a disabled individual from regularly working the hours essential to a particular job may not be required as a reasonable accommodation. But what if the “accommodation” is leave under the FMLA? The U.S. Department of Labor was asked if intermittent FMLA leave can be taken on an ongoing basis, to indefinitely excuse an employee from working the essential hours of a job. Employers are not going to be happy with the DOL’s answer.

Questions? Contact attorney James B. Sherman at (952) 746-1700 or by email

Wessels Sherman Attorney James Sherman Selected to Super Lawyers

Wessels Sherman is pleased to announce that its President and CEO, James Sherman, has been selected by Thompson Reuters to the “2023 Minnesota Super Lawyers List.” ® “Super Lawyers” states that it is a rating service of lawyers in more than 70 practice areas who have attained a high degree of peer recognition, meet ethical standards, and have demonstrated professional achievement in their field.

Having been recognized for this honor again, in 2023, Mr. Sherman commented:

“I am honored and humbled to once again be recognized by Thompson Reuters through its rigorous selection criteria, for inclusion in its elite list of Super Lawyers. This achievement is special to me because it is based, in part, on a comprehensive peer review of my fellow practitioners in labor and employment law. Having the respect of other labor and employment attorneys, including those I practice against, to me validates that it is possible to jealously represent my clients, while being respectful of the courts, administrative agencies, and opposing counsel I encounter in my practice.”

The Super Lawyers designation states it is reserved for no more than 5% of attorneys.

Protecting Employers Since 1985

Questions? Contact attorney Anthony Caruso (630) 377-1554 or by email

Federal Law - "Speak Out Act!" - Limits the Use of Non-Disclosure and Non-Disparagement Provisions in Pre-Dispute Employee/Employer Agreements

By Anthony J. Caruso, Jr., Esq.

Effective Date: President Biden signed it into law on December 7, 2022.

What It Does: Renders unenforceable non-disclosure and non-disparagement provisions in employee/employer agreements.

Type of Agreements: Related to allegation of sexual assault and/or sexual harassment and that are entered into “before the dispute arises.”

“Before the Dispute Arises” Defined: Before a lawsuit is filed.

Size of Employers Affected: All employers.

The law is a trend under federal and state laws to limit the use and/or enforcement of confidentiality and non-disparagement provisions in settlement agreements.

Employers should review their employment agreements, employee handbooks, confidentiality agreements, and separation agreements to ensure compliance with the law.

NLRB Launches "Know Your Rights" Card Series

With its pro-employee majority and new General Counsel, the NLRB is continuing in their aggressive pursuit of employers. Recently they announced the development of a “Know your Rights” card series to educate workers on their rights under the National Labor Relations Act. The cards are designed to be printed, folded, and used by workers in the workplace. Additional cards in the series will be rolled out this year.

The full press release is located here.

Questions? Contact Richard Wessels at (630) 377-1554 or by email