Questions? Contact attorney Alan Seneczko (262) 560-9696 or by email
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“Harassment” In the Next Generation |
By Alan E. Seneczko, Esq. |
Time passes in the blink of an eye, as do changes in our culture and work environment. Just yesterday, I was counseling employers about new laws prohibiting discrimination against individuals with disabilities and requiring family leave, and managing employees in the “electronic” workplace, in a world of social media. Now that’s old news, with established norms and expectations.
Enter the next generation and ever-changing social norms… a world where minor slights, perceived insensitivities, “microaggressions” and “unconscious bias” form the basis of threatened litigation. But, is there a legal basis for such claims? Is there a difference between “microaggressions” and harassment that is actionable under Title VII? What about “bullying?’ If bias is “unconscious,” how can it be intentional?
Over the past several months, the following behavior (and more) has come across my desk in the form of new or threatened claims of discrimination:
- An employee who was invited to a social outing by her coworkers during COVID claimed that the invitation constituted a “microaggression” against her on the basis of her national origin, claiming it was insensitive to the disproportionate impact COVID was having on the Hispanic community.
- An employee responded to criticism by his boss for being repeatedly late, stating that he did not appreciate, and was not going to respond to, his boss’s “aggressive” tone of voice, which he considered bullying.
- Use of the words “lowest on the totem pole” when describing unfavorable assignments being assigned to the newest employees as implying a negative stereotype of Native Americans.
What to make of all of this?
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Court Of Appeals To Determine Whether To Enforce The NLRB’s Controversial Mclaren Macomb Decision That NDAs And Non-Disparagement Agreements Violate Federal Labor Law
As predicted, the National Labor Relations Board’s recent decision in McLaren Macomb has quickly advanced to the U.S. Court of Appeals for the 4th Circuit. In February the NLRB declared that employers violate federal labor law if they include nondisclosure (NDAs) or non-disparagement clauses in severance agreements for non-managerial employees. The appellate court will decide whether the Board’s decision is enforceable. Because NDAs and non-disparagement clauses are commonly included in severance and settlement agreements with employees, the court’s ruling will have huge implications for employers. Watch for updates from Wessels Sherman on this highly anticipated decision.
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Protecting Employers Since 1985 |
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NLRB Details Harsher Remedies in Unfair Labor Practice Cases |
As our readers no doubt are aware, President Biden has promised that he will be the most union-friendly president in American history. He has appointed to the NLRB members and officials in keeping with this mission. The most recent change came out on April 20. The NLRB, in a decision (Noah’s Ark Processors), announced the harsher remedies and procedures against Employers in ULP cases such as:
- Adding an Explanation of Rights to the remedial order that informs employees of their rights in a more comprehensive manner;
- Requiring a reading and distribution of the Notice and any Explanation of Rights to employees, including potentially requiring supervisors or particular officials involved in the violations to participate in or be present for the reading and/or allowing presence of a union agent during the reading;
- Mailing the Notice and any Explanation of Rights to the employees’ homes;
- Requiring a person who bears significant responsibility in the Respondent’s organization to sign the Notice;
- Publication of the Notice in local publications of broad circulation and local appeal;
- Requiring that the Notice/Explanation be posted for an extended period of time;
- Visitation requirement, permitting representatives of the Board to inspect the Respondent’s bulletin boards and records to determine and secure compliance with the Board’s order;
- Reimbursement of Union’s bargaining expenses, including making whole any employees who lost wages by attending bargaining sessions.
The Board stated that these harsher remedies will apply to repeated or egregious misconduct. I am skeptical of this limitation. Click here for the Board’s press release and click here for the full decision.
Questions? Contact Richard Wessels at (630) 377-1554 or by email
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Appellate Court Hands Northwestern University A Win In ADA & FMLA Suit |
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By James B. Sherman, Esq. |
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The case was brought by a lab-tech employed by the university’s medical school, alleging several claims, including harassment, disability discrimination, and retaliation for taking FMLA leave for anxiety. The plaintiff also alleged she was called a “typical millennial,” “Princess Diana,” and teased about needing psychiatric help, or being “off her meds.” The FMLA claim named both the school and plaintiff’s supervising doctor, individually, as defendants. The plaintiff alleged her supervisor rescinded his letter of reference for her application to medical schools, after she took FMLA leave. The Seventh Circuit’s decision provides the following lessons for employers:
Lesson # 1: Can a supervisor be sued personally in an FMLA lawsuit, separate from their employer?
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Questions? Contact attorney James B. Sherman at (952) 746-1700 or by email
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In this May edition of our Client Alert we recognize that spring is a time of year for unbridled optimism, enthusiasm, and joy. Ground is broken on new construction, businesses launch ambitious projects, families plan weddings, children graduate, and for many, hope springs eternal. Inspired by the season we at Wessels Sherman have determined to devote a bit of space in our newsletters each month, to share stories of pride and humble gratitude. We invite our readers and friends to share your own proud moments of personal or business achievements, to be considered for future segments of "Proud Moments to Share." |
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Our inaugural "proud moment" involves Wessels Sherman shareholder Alan Seneczko and his daughter, Ally.
The two recently appeared before the Wisconsin Supreme Court, where Al had the privilege of moving his daughter for admission to the State Bar.
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Ally Seneczko, standing, smiles as she looks at her father, attorney Alan Seneczko, who moved for her admission before the Wisconsin Supreme Court.
Image courtesy of Wisconsin State Bar
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Employment Law Questions?
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A wealth of informational articles on labor and employment law. Visit Blog.
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