Client Alert


Labor and Employment Law Newsletter for Employers  March 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 and Illinois. Approved credits will be posted.
5.5 hours -Iowa Federal CLE; 6.0 hours - Iowa CLE; 7.5 hours - Wisconsin CLE; 6.4 hours - Indiana CLE; 6.5 hours CPE; 6.5 hours HRCI
Walter J. Liszka
More EEOC Woes
By: Walter J. Liszka, Esq.
Over the last few years, it seems that not a lot of time goes by before the Equal Employment Opportunity Commission is not at the forefront in creating more issues for Employers. Over the last few years, we have seen a drastic increase in EEOC litigation and avant-garde positions with regard to Employer/Employee Arbitration Agreements and the protection of transgender individuals (numerous lawsuits have been filed in the last year to protect the rights of transgender employees predicated on the EEOC's new position that "sexual orientation" is, in fact, predicated on "sex" and therefore is a violation of Title VII). I doubt that when Congress wrote Title VII in 1964, Congress had transgender employees in mind. Regardless of avant-garde positions and increased litigation, the Equal Employment Opportunity Commission has struck again.

The EEOC has developed a new Nationwide Policy on Position Statements - "Nationwide Procedures For Releasing Respondent Position Statements and Obtaining Responses From Charging Parties". Please note that this "New Policy" is effective retroactive to January 1, 2016. From now on, an Employer's Position Statement and any supporting documentation that is not identified by the Employer as "confidential information" and submitted to the EEOC as a Position Statement in response to a Charge of Discrimination will be provided to the Charging Party upon that Charging Party's request. If an Employer wishes to protect certain information, provided as part of the Position Statement, as "confidential information", that information must be provided by the Employer in a separate attachment to the Position Statement and appropriately labeled as to the reason why it is "confidential information".

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at  
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Nancy E. Joerg
What Should a Company Do if it is Hit with an IRS SS-8 Request?
By: Nancy E. Joerg, Esq.
Out of the blue, a company may receive a sudden, unwelcome (and frankly upsetting) letter in the mail from the IRS SS-8 Unit (asking the company to fill out an SS-8 form).

The SS-8 Form is entitled " Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding." You can easily find it online.

This IRS form is mailed without warning to select companies across the United States who use independent contractors. The form is often sent to a company when a former independent contractor complains to the IRS that he/she was really an employee (and was misclassified by the employer).

The SS-8 form is four pages of often tough questions about the alleged independent contractor relationship between the Company and the "worker" (a supposedly neutral term for an independent contractor whose classification status is now in dispute).

TRICKY QUESTIONS: The questions on the SS-8 form are confusing and often tricky. Almost every question on the SS-8 could be interpreted and answered in different ways. If companies are 100% honest, they will often put down answers which unwittingly destroy independent contractor status because the honest answer is not always the complete answer as far as independent contractor status is concerned.

Questions? Contact Attorney Nancy Joerg in our St. Charles office at (630) 377-1554 or by email at
Seneczko, Alan
Alan Seneczko
Scary Stuff: Individual Liability for FMLA Violations. HR Directors Beware!
By: Alan E. Seneczko, Esq.
You go to work. Agonize over the interpretation of the FMLA. Make a tough decision. Frustrating, for sure, but at the end of the day, do you expect to be sued individually for the decision you made? On March 17, 2016, the Second Circuit Court of Appeals said you can.

In Graziadio v. Culinary Inst. of Am., an HR Director became embroiled in a dispute with an employee over the sufficiency of her medical certification and continued absence to care for her two ailing sons, eventually terminating her employment. The employee then sued both the company and the HR Director personally for interfering with her FMLA rights, and the Second Circuit allowed the claim against the HR Director to proceed.

Under the FMLA, an individual may be held liable if she qualifies as an "employer," which is defined as encompassing "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." (Apparently, the fact that the employer must also employ 50 employees is meaningless.) To determine whether an individual meets this test, the courts have applied the "economic reality" test utilized under the Fair Labor Standards Act. Under that test, a number of factors are considered to examine the extent to which the individual possessed the power to control the work in question, including whether she 1) had the power to hire and fire; 2) supervise and control work schedules and conditions of employment; 3) determine rate and method of pay; and, 4) maintain employment records.

Want more information about the FMLA, intermittent leave and medical certifications? Be sure to attend
" 10: A Day of Lists," where Attorney Seneczko will be addressing this issue. 
Questions? Please contact Attorney Alan E. Seneczko in our Oconomowoc office at (262) 560-9696, or email
James Sherman
James B. Sherman
NLRB Judge Rules that Employer Violated Federal Labor Law by Firing Employee for Profanity-Laced Derogatory Comment about a Customer
By: James B. Sherman, Esq. 
Employers are likely to put this recent decision in the ever growing category of unthinkable rulings coming from the National Labor Relations Board (NLRB) these days. An employee of Quicken Loans commented to a co-worker during a conversation that took place in a restroom, that a customer needed to "call a client care specialist and stop wasting my [f-ing] time." When a manager later learned of this, the employee believed to have made the comment was summarily discharged. Management declared that the offending employee was terminated to uphold a company culture where all employees are expected at all times to display the utmost degree of professionalism and integrity. However, as is becoming more and more common these days, even for those who are not represented by a union, the employee went to the NLRB to file an "unfair labor practice," or ULP charge. Following an investigation the NLRB's General Counsel issued a complaint against Quicken Loans and the matter went to a full evidentiary hearing. Following the hearing, Administrative Law Judge (ALJ) Dickie Montemayor ruled in the employee's favor. Notwithstanding the employee's use of a vulgarity in reference to a customer, the ALJ determined the profane comment nevertheless amounted to "concerted activity" worthy of protection under Section 7 of the National Labor Relations Act. The ALJ therefore ruled that Quicken Loans violated federal labor law and ordered the firm to: (1) rehire the employee; (2) pay him for all lost earnings and otherwise make him "whole"; and (3) eliminate any work rules that "unlawfully restrain ... employees' rights to discuss working conditions." In other words, Quicken Loans' expectations for employees to at all times display professionalism, integrity, etc. interfered with this employee's "protected right" to refer to its customer using profanity and, therefore, was deemed an unlawful policy that could not be maintained!
  Read more...  

Questions?  Contact Attorney James Sherman in our Minneapolis office at (952) 746-1700 or . 
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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.