September 2016
The Big 3: Three Major Takeaways from the EEOC's New Guidance on Retaliation Claims
By Ryan L. Young, Esq.

A lot has changed since the EEOC last updated its stance on retaliation claims 18 years ago. Most notably, retaliation claims have skyrocketed. In fact, the number of retaliation claims filed with the EEOC has increased 119% since 1998. Retaliation claims are so common that they accounted for nearly 45% of all EEOC charges filed in 2015. It is against this backdrop that the EEOC issued its most recent enforcement guidance on retaliation. Here are three big takeaways for employers:
1. The new guidance provides an expansive view of what constitutes a "materially adverse action".

Arguably the most prominent portion of the guidance can be found in the section addressing the various types of materially adverse actions that can trigger a retaliation claim. Most employers know the obvious types of adverse action: refusal to hire, denial of promotion, demotion, suspension, and discharge.
Questions? Contact Attorney Ryan Young in our Chicago office at (312) 629-9300 or by email at 
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ACA FAQ of the Month: Should I Appeal a Health Insurance Marketplace Notice?
By Peter E. Hansen, Esq.

You may have already received a notice from the Department of Health and Human Services ("HHS"), notifying you that one or more of your employees enrolled in health coverage through the state health exchange. Significantly, although employers can appeal the notice, the notice is not a penalty - penalties will be assessed by the Internal Revenue Service in 2017. That being said, the notice could potentially lead to penalties, and should be appealed ... sometimes. So, how do you know whether you should to appeal a notice?

First, note that the HHS is trying to determine whether the individual who applied for coverage through the state health exchange is eligible for a subsidy. Put another way, the HHS does not care whether you are a small employer and thus not obligated to offer the employee coverage, or whether the employee worked part-time and thus was not eligible to participate in your group health plan. Rather, the HHS wants to know:
  1. Did you offer the employee the opportunity to enroll in an employer-sponsored group health plan?
  2. If so, was the cost to the employee "affordable" and did the group health plan provide "minimum value"?
If the answer to both questions is "yes," then you should certainly appeal. If not, then you may still appeal - but remember that the HHS is not trying to determine your obligations under the ACA, and may deny your appeal even if you did not violate the ACA.

Questions? Suggestion for a future ACA FAQ of the Month? Please contact  Attorney Peter E. Hansen at (630) 377-1554, or email
More Aggressive Action By U.S. Department Of Labor Against Classifying Workers As Independent Contractors
By Nancy E. Joerg, Esq.

NEW U.S. DOL WEBPAGE ABOUT MISCLASSIFICATION MYTHS : Government agencies such as the U.S. Department of Labor ("U.S. DOL") continue to try to reign in companies who use independent contractors (and make it more high-risk for these companies to do so). In this spirit, the U.S. DOL recently established a controversial new page on its website called "Myths about Misclassification."
The obvious purpose of the U.S. DOL's webpage about Misclassification Myths is to educate (and scare!) already nervous companies into hurriedly reclassifying their workers as employees rather than as independent contractors.
Questions? Contact Attorney Nancy E. Joerg in our St. Charles office at (630) 377-1554 or by email at
Employees Gambling At Work?
By Walter J. Liszka, Esq.

If you are a sports fan, professional or collegiate, you know what time of the year it is - the NFL started on September 8, 2016 with Carolina vs. Denver; in a few weeks, Major League Baseball will start its Playoff Season with a trip to the World Series; College Football is in full force and the National Hockey League will begin shortly. What does this mean to an Employer? An Employer with a "blind eye to sports" risks running into a lot of potential problems and issues with its Employee Complement.
Principally, there are two interrelated multi-billion dollar industries that may be impacting your workplace - the NFL and Fantasy Sports. As well, although the NFL is constantly denying it, gambling on professional football games is at an all-time high and when those three (NFL/Fantasy Sports and internet gambling) coincide, all Employers are potentially at risk. If you, as the Employer, believe that no one in your workforce will be interested in any of the above three, you are in for a rude awakening.

Questions? Contact Attorney Walter Liszka at our Chicago office at (312) 629-9300 or by email at
Upcoming Events
For more information or to register for any of the following Wessels Sherman events, click on the provided hyperlinks below or contact any of our offices.
Thursday, October 20, 2016, 2:00 - 3:00 p.m.

Thursday, October 27, 2016, 9:00 a.m. - 12:00 p.m.
Seminar, St. Charles, Illinois

Wednesday, November 30, 2016, 8:00 - 10:00 a.m.
Seminar, St. Charles, IL
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
The 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.