Client Alert


Labor and Employment Law Newsletter for Employers  May 2016
Compliance, Compliance, Compliance!
The New Overtime Rules Place Employers In Compliance Mode

By: James B. Sherman & Sean F. Darke.

null Sean Darke, Attorney Wessels Sherman has been deeply involved in all the issues brought about by the DOL's final rule on overtime exemptions, really from the start. In fact, the comments that we assembled and submitted last fall on behalf of employers in opposition to troubling aspects of the proposed rule, were expressly recognized in the DOL's preamble to its new rule out of more than 270,000 submissions it received from business groups, unions, individuals and certainly many other law firms.
The Department of Labor released major changes to the Fair Labor Standards Act ("FLSA") overtime requirements, which has put businesses on notice that they needs to assure their pay methods are in compliance by no later than December 1, 2016. So what does a business do when the U.S. Department of Labor abruptly more than doubles the minimum salary employees must be paid in order to qualify as exempt from the overtime requirements of the Fair Labor Standards Act?
The biggest change is obviously the salary increase for exempt workers. The new regulations increase the salary basis requirement to $47,476.00, which is $913 per week. Any individual falling under that salary requirement, will need to be paid overtime at a rate of time and a half for all hours over 40, unless another FLSA exemption applies. Based on the numerous objections that were sent to the DOL regarding the proposed rule, the DOL included a provision allowing employers to include nondiscretionary bonus and incentive pay toward a portion capped at 10% of the new salary threshold. This will slightly help businesses, but overall, the DOL seems to have added the section as an attempt to simply appease the overall opposition to these new rules. Although, the DOL added a "catch-up" pay, which allows a business to ensure that exempt employees who may fall below the new minimum salary in a given quarter, by paying a lump sum to make up the shortfall in salary.

Questions? Contact one of our offices for assistance.
Webinar:  Final DOL Overtime Exemption Rule
New Game Changing White Collar Exemption Regulations Rule Passed by the DOL!! 

How to Avoid Overtime Liability for White Collar Workers Under the DOL's New Regulations.

Thursday, June 2, 2016, 1:00 - 2:00 p.m.

Join Wessels Sherman shareholders James B. Sherman and Sean F. Darke for this highly informative webinar focused on helping employers learn how to maintain exempt employment status for employees or, alternatively, to best deal with reclassifying employees from exempt to non-exempt status.

In This Issue
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Nancy E. Joerg
States Join U.S. Department Of Labor in Fierce Battle Against Misclassified Independent Contractors
By: Nancy E. Joerg, Esq.

States across the United States have been signing up, one by one, to join forces with the U.S. Department of Labor ("U.S. DOL") to root out independent contractor misclassification.
OREGON IS 29TH STATE TO JOIN FORCES WITH THE U.S. DOL: Oregon is the 29th state to enter into a written Memorandum of Understanding with the U.S. DOL's Wage and Hour Division. The partnership agreement is a three year agreement beginning April 4, 2016 between the Oregon Bureau of Labor and Industry and the Wage and Hour Division of the U.S. DOL. The agreement sets forth mutual goals to establish clear, accurate and easy-to-access outreach to employers and employees and to share resources and enhance enforcement (by conducting joint investigations and sharing information).
LISTING OF 28 OTHER STATES: The other 28 states that have entered into Memorandums of Understanding over the past five years with the U.S. DOL are:

1.   Hawaii

2.   Alaska

3.   California

4.   Washington

5.   Idaho

6.   Montana

7.   Wyoming

8.   Utah

9.   Colorado

10. New Mexico

11. Texas

12. Minnesota

13. Iowa

14. Missouri

15. Arkansas

16. Louisiana

17. Wisconsin

18. Illinois

19. Kentucky

20. Alabama

21. Florida

22. New York

23. Maryland

24. Vermont

25. New Hampshire

26. Massachusetts

27. Connecticut

28. Rhode Island


Questions? Contact Attorney Nancy Joerg in our St. Charles office at (630) 377-1554 or by email at
Ryan M. Helgeson, Esq.
Ryan M. Helgeson
Nurses and the H-1B Visa - 5 Questions Answered
By: Ryan M. Helgeson, Esq.

Since the discontinuation of the H-1C Visa Program for nurses in December 2009, healthcare providers across the country have been struggling to fill nursing positions given the dearth of visa options for foreign nurses. The H-1B visa for specialty occupations seems like a viable option, but there are many obstacles that stand between healthcare institutions and H-1B visas for their foreign nursing candidates. This article will explore five issues with obtaining H-1B visas for nurses and provide recommendations for success.
1)    What does it take to qualify for the H-1B Visa?
The H-1B visa classification allows U.S. employers to petition to hire employees (beneficiaries) to work in specialty occupations. The term "specialty occupation" means an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and, (2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum requirement for entry into the occupation in the United States.
To qualify as a specialty occupation, federal regulations require that the employer demonstrate that the position meets at least one of the following criteria:  
  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Questions? Contact Attorney Ryan Helgeson in our Chicago office at (312) 629-9300 or by email at
Walter J. Liszka
Family Medical Leave Act
By: Walter J. Liszka, Esq.
It seems that not a week goes by without some Agency in the Federal Government issuing new rules, new regulations and new procedures that continue to befuddle Employers and expose Employers to "new avenues" of possible legal liability. The US Department of Labor, one of the most active groups, and who will soon be active again, the changing of the "White Collar Exemption" and Overtime Pay Requirements, during the latter part of the week of May 2, issued two (2) documents of primary importance to Employers.
The first (1st) of these "issued documents" is a new FMLA Poster, a copy of which can be accessed here: . While the Department of Labor has indicated that its February, 2013 version of the Poster can continue to be used to fulfill the Employer's posting requirements, it is respectfully suggested by the author that the new Poster be used. As an aside, the new Poster may be procured directly from the United States Department of Labor Wage and Hour Division.

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.