Client Alert
May, 2019
Summer Interns Still an Option?
Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email
By: Walter J. Liszka, Esq.
As we approach the summer months with temperatures rising and days getting longer, the issue of summer interns gains more interest for both employers and the interns alike. For the interns, they gain experience, training and exposure to the employment industries and real work life. For employers, they gain new help, new ideas and hopefully development of a pipeline for future employees. But one of the biggest problems with regard to summer interns for employers is whether or not the summer intern is a paid or unpaid position. This year, the United States Department of Labor has rejected its old six (6) factor test and replaced it with a new seven (7) factor test which is known as the " Primary Beneficiary Test".

While the new Primary Beneficiary Test is considered as more flexible than the prior test, it also focuses on what can be identified as "economic realities" -- in essence is the employer the primary beneficiary of the work? If so, the intern must be compensated. If, on the other hand, the intern is the primary beneficiary of the relationship, the internship may be unpaid. The following are the seven (7) factors used in the analysis:

Help! My Company Just Received a "No Match Letter" - How Should We Respond?
By Nancy E. Joerg, Esq.
Clients have called me recently (with increasing frequency) seeking legal advice on how to respond to the " no match letter" that they suddenly received in the mail from the Social Security Administration. It is a two page letter entitled " Employer Correction Request."

NUMBER OF EMPLOYEE NAMES AND SSNs THAT DO NOT MATCH : This Employer Correction Request letter (which is often referred to by legal analysts as the "no match letter") starts out with a section saying " Why You Are Getting This Letter." It informs the recipient about how many employee names and Social Security Numbers (on the W2 forms the employer provided) do not match the records of the Social Security Administration (for a certain specified tax year-the recent letters that clients are getting from the Social Security Administration are for the 2018 tax year).

Contact Attorney Nancy Joerg in our St. Charles office at (630) 377-1554 or by email
Landmark Decision Defines Cause of Action For "Negligent Supervision" of Employees, Personal Liability for Supervisors
By James B. Sherman, Esq.
On May 23, 2019 the Illinois Supreme Court ruled, in Jane Doe v. Chad Coe et al. - a case of first impression for the court - what elements are necessary to pursue a lawsuit for "negligent supervision" of an employee. Most state courts recognize claims against employers for negligence regarding their employees who harm others, and Illinois is no exception. "Negligent hiring" generally involves hiring an employee who foreseeably would harm someone, who in fact does go on to harm someone (e.g. hiring an individual to work at a day-care who is known, or through a reasonable background check should have been known, was a convicted pedophile who poses a risk to children, if the employee later molests a child). Conversely, a claim of "negligent retention" may exist where an employer fails to discharge an employee known (or who reasonably should have been known) to present a foreseeable risk to others, who then goes on to do harm. Yes, that's right - employers sometimes have a legal duty to fire an employee! The recent Coe case involved claims for both negligent hiring and negligent retention, but also a claim for "negligent supervision." As the name suggests, a claim for negligent supervision involves an employer's failure to properly supervise employee(s) to avoid foreseeable risks of harm to others. While the Illinois Supreme Court had previously recognized the existence of a claim for negligent supervision, it had not addressed what elements are required to pursue such a claim. In doing so the court paved a relatively easy path for plaintiffs to sue not only employers for negligent supervision, but also individuals who direct and control workers. Employers, owners, managers and front-line supervisors in Illinois will want to take notice of this important decision and pay particular attention to the kinds of specific responsibilities expected of them (perhaps even doing a "Google search" on some applicants).

Contact Attorney James Sherman in our Minneapolis office at (952) 746-1700 or by email
James Sherman and Peter Hansen to Present at Advanced Employment Law Seminar in June, Sponsored by the National Business Institute (NBI)
Wessels Sherman attorneys James B. Sherman and Peter E. Hansen will be among the featured speakers to present on advanced employment law topics at a two-day seminar in Naperville, Illinois, on June 18-19, 2019. 

Mr. Sherman will give presentations on two topics: Navigating the ADA and Legal Strategies to Defend Against Retaliation Claims. Mr. Hansen will present on Conducting Internal Investigations and Preservation of Attorney-Client Privilege. 

The National Business Institute provides continuing education to the legal industry as well as business, accounting, insurance, human resources and government.
Service Animals in the Workplace
By Walter J. Liszka, Esq.
I am fairly certain that a number of readers of this article will have been on airlines or in restaurants where they have observed individuals being allowed to have "service animals" accompany them on their trip or their restaurant excursion. It is not surprising that the issue of service animals in the workplace is now becoming more common and potentially raising issues that an employer must address.

Whether an employer has to accommodate the request to bring a service animal into the workplace depends on whether or not the employee is a qualified individual with a disability and the request for accommodation will enable the employee to continue to perform the essential functions of his/her job and the service animal is an animal as defined under the Americans With Disabilities Act.

Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email
Join Wessels Sherman attorneys Dick Wessels, Nancy Joerg, Joe Laverty and Tony Caruso for a special breakfast seminar at the historic Dunham Woods Riding Club in Wayne, Illinois. Attendees will be delighted by the charming rooms, magnificent art work and antique furnishings. Enjoy gorgeous views of the rolling countryside. Raffle prizes too!

When: Wednesday, October 23, 2019 from 8:00 AM to 12:00 PM
Where: Dunham Woods Riding Club, Wayne, Illinois
Cost: $100 which includes continental breakfast and valuable handouts
Connect with Wessels Sherman 
Upcoming Seminars, Webinars and Teleseminars
Thursday, June 20, 2019, 2-3pm

Thursday, September 12, 2019, 2-3 pm

Wednesday, October 23, 2019, 8 am - Noon

Thursday, November 14, 2019, 2-3 pm
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.