Client Alert


Labor and Employment Law Newsletter for Employers  February 2016

Join our employment attorneys for an interesting and informative "Day of Lists," an entire day devoted to the most critical aspects of the decisions and issues you face on a daily basis -- and their legal consequences, all in a unique and fun "list" format.

Cost:  $175 - First person;  $125 - Additional person (same company)    
Location: Country Springs Hotel & Conference Center | Pewaukee, WI
    Early reservation rate: $104 (for registrations made by April 12, 2016)

CREDITS: We are in the process of applying for CLE credits for Minnesota, Illinois, Wisconsin, Iowa and Indiana. Approved credits will be posted. 6.5 CPE and HRCI credits available.
James B. Sherman
Legal Brouhaha between the U.S. Soccer Federation and the Union for the Women's National Soccer Team, Illustrates the Importance of "Dotting I's and Crossing T's" in Collective Bargaining!
By: James B. Sherman, Esq.
In a lawsuit filed in federal court in Chicago on February 3, 2016, the United States Soccer Federation is seeking a "declaratory judgment" that its collective bargaining agreement (CBA) with the Women's National Soccer Team Players Association, remains in effect through the end of 2016. The Players Association, the union representing the U.S. Women's Soccer Team, is alleged in the lawsuit to have declared that the CBA either already expired prior to 2016, or was terminable at will.  The union therefore contends that the players are free to go on strike at any time of their choosing.  Women's team players have made no secret of their dissatisfaction with the fact that they are paid less than players on the men's national team, despite the fact that the women are past Olympic and recent World Cup Champions, whereas the men have failed to advance in world competition.  No doubt the players' union intends to leverage its demands for improved wages and other terms for the women's national soccer team players, under threat of a strike.  The federation's lawsuit seeks to enforce a CBA it contends bans the union from striking in 2016.

The U.S. Women's Soccer Team are the 2015 World Cup champions and are expected to qualify for and play in the 2016 Summer Olympics, in Brazil. Additionally, the national team serves as the backbone of the newly formed National Women's Soccer League (NWSL).  Not only does it allocate its nationally known players such as team captain Carli Lloyd, Alex Morgan and Hope Solo to play in the new professional league, the national team also pays their salaries. A players' strike in 2016 would be devastating to the national team as well as to women's professional soccer in America.  With so much as stake, how is it that there is any uncertainty as to the expiration date of the CBA governing the terms and conditions of the U.S. Women's National Soccer Team?  An examination of the recently filed lawsuit and the parties' contentions, holds important lessons for employers and unions alike, regardless of their industry.

Questions? Contact Attorney Jim Sherman in our Minneapolis office at (952) 746-1700 or by email at
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ObamaCare FAQ of the Month
What Happens When a Full-Time Employee Becomes Part-Time?
Peter E. Hansen
By: Peter E. Hansen, Esq.
Now that the ACA is in full swing, I'm sure many of you have grown intimately, painstakingly familiar with the look back measurement method of determining an employee's full- or part-time status. You set up your 3 to 12 month Standard Measurement Period that you will review to determine how many hours your employees worked on average, and your optional Administrative Period that you will use to determine who qualifies as full-time and offer them coverage. You also know that you must offer coverage to employees who averaged 30 or more hours per week over the Standard Measurement Period throughout the duration of the Stability Period. So, what happens when a full-time employee decides to move into a part-time position?

Say you employ Abigail as a full-time astrophysicist. You know that Abigail is full-time because she worked an average of 35 hours per week over her recently-completed Standard Measurement Period, and so you offered her the opportunity to enroll in your group health plan. Three months later, she requested a lighter schedule, and so you agreed to move her into a 20 hour per week position effective February 20. Under the ACA, you must allow her to continue participating in the plan, but only for the first three full calendar months following the change in employment status. As a result, if Abigail does in fact work fewer than 30 hours per week from March 1 through May 31, then she no longer qualifies a full-time employee even though she worked full-time over her recently-completed Standard Measurement Period.

As with everything else ACA-related, the rule is a bit more complicated than the above makes it appear. For example, in order to take advantage of the rule, you must offer the employee coverage that provides minimum value within three full calendar months of hire. The good news, however, is that employers with employees who transition from full- to part-time mid-Stability Period need not continue to offer coverage to the part-time employee throughout the entire Stability Period. As always, we can help with any questions or concerns.
Questions? Suggestion for a future ObamaCare FAQ of the Month? Please contact Attorney Peter Hansen at (262) 560-9696, or email
Walter J. Liszka
Joint Employer Dilemma
By: Walter J. Liszka, Esq.
In our Client Alert Newsletter over the last few years, I have written a number of articles dealing with the National Labor Relations Board and its march to create "Joint Employer Status" in the franchisor/franchisee industry. This "march" has been driven by the new standard announced by the NLRB in the Browning Ferris case. Currently, there are well over seventy (70) Unfair Labor Practice Charges involving the McDonalds operation in litigation before the NLRB. In point of fact, the United States Department of Labor Wage and Hour Division is creating a similar thrust to make most Employers into Joint Employer Status.

On January 20, 2016, the United States Department of Labor, Wage and Hour Division, issued its Administrative Interpretation on Joint Employment under the auspices of the Fair Labor Standards Act and the Migrant Worker Protection Act. It is the position of the United States Department of Labor that "Joint Employment is more common than previously concluded and that Joint Employment issues should be extensively investigated and defined as expansively as possible." Whether two (2) or more Employers are Joint Employers raises two (2) very important issues. In the first instance, hours worked by an individual Employee for all of his or her Joint Employers during any one (1) calendar workweek must be aggregated and considered as one (1) Employment - including the calculation of whether overtime is due. Simply stated, if an individual Employee, in a seven (7) calendar day workweek, works thirty (30) hours for Employer A, and then works an addition thirty (30) hours for Employer B, if they are Joint Employers this means the individual has worked sixty (60) hours in the calendar workweek and is entitled to twenty (20) hours of overtime pay. This could further be complicated by the fact that for Employer A, the individual works at $10 an hour and for Employer B works at $11 an hour. In this case, the overtime pay rate for the aforementioned twenty (20) hours would be time and one half times $10.50 an hour or the "average pay rate" for the involved Employee. Because the individual Employee worked the same hours for the two (2) Employers, the overtime wage is a simpler calculation. If "different hours" had been worked, the calculation becomes more complicated as a "weighted average."

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at
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About the Client Alert
The attorneys of Wessels Sherman have the superior experience, knowledge and leadership to aggressively represent your business nationwide, including St. Charles, Chicago and Cook County, Illinois; Oconomowoc, Wisconsin; Minneapolis, Minnesota; Davenport, Iowa and the entire Quad Cities area.
CLIENT ALERT Editor-in-Chief.....Walter J. Liszka
Minnesota........................................James B. Sherman
Wisconsin.........................................Alan E. Seneczko
Iowa..................................................Joseph H. Laverty
Illinois..............................................Nancy E. Joerg
WS Client Alert is a complimentary newsletter published periodically for clients and friends of Wessels Sherman. We reserve the right to limit distribution of our materials to representatives of management. The materials in this newsletter have been abridged from a variety of sources and are not necessarily applicable to a particular situation. The contents of this mailing should not be construed as legal advice. State laws vary. Readers should consult with legal counsel before taking any action on matters covered by this mailing.