Client Alert
October, 2018
Sexual Harassment and Stalkers
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Contact Attorney Alan E. Seneczko in our Oconomowoc office at (262) 560-9696 or by email at
By: Alan E. Seneczko, Esq.
Last month I wrote that conduct that is sexual in nature does not necessarily constitute sexual harassment unless it is directed at a person because of his or her sex. But what about conduct that is not necessarily sexual in nature, but really creepy? In other words, can stalking be considered sexual harassment, even if it is not overtly sexual? If so, can an employer be liable when a customer or some other third party is doing the stalking? In a recent case involving Costco, the Seventh Circuit unequivocally found that it can and was.

In EEOC v. Costco, Case No. 17-2432 (7 th Cir. Sept., 2018), the Seventh Circuit addressed, in essence, the issue of stalking in the workplace. The case involved an employee who was subjected to repeated, disturbing conduct by a Costco customer. The customer appeared on the premises on multiple occasions over the course of several months, watching the employee, attempting to strike up conversations with her, asking her personal questions (e.g., where she lived, if she had a boyfriend, etc.) and other questions in "sexual way," complimenting and commenting her on her appearance (e.g., telling her she was "pretty" and "exotic," commenting on her makeup, etc.), repeatedly asking her out on dates, bumping his cart into her, twice touching her (once on the wrist and once on her face) and videotaping her from afar - conduct that was not patently sexual, but certainly creepy and unsettling, to say the least.

Independent Contractor Legal Battle Now May Include Accusations of Unfair Competition
By Nancy E. Joerg, Esq.
In September 2018, yet another lawsuit was filed against Uber, the ride-hailing company that has had several lawsuits filed against it, many about the classification issue of whether Uber drivers are employees or independent contractors. Uber has found some effective legal defenses in these lawsuits against it, so now a unique kind of lawsuit has been added to the lineup of lawsuits against Uber.

Diva Limousine, a California employee-based limo company, sued Uber in Federal court in September 2018. Diva argued that Uber has an unfair competitive advantage in the ride-hailing marketplace (including limos and taxis) by improperly classifying its drivers as independent contractors and not employees, as Diva does.

In its novel lawsuit, Diva Limousine is seeking certification as a "class," an injunction against Uber barring Uber from pricing rides below cost, and treble damages against Uber, its competitor.

Contact Attorney Nancy Joerg in our St. Charles office at (630) 377-1554 or by email at
With Justice Brett Kavanaugh Appointed To The United States Supreme Court, The Court Is Likely To Issue Pro-Employer Decisions In The Years To Come
By Joseph H. Laverty, Esq.
No matter what your political view is regarding Justice Kavanaugh's lifetime appointment to the U.S. Supreme Court, employers can expect Justice Kavanaugh to be a strict constructionist of the many labor and employment statutes that employers must abide by. Prior to being appointed to the high court, Justice Kavanaugh was appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 2006 by President George W. Bush.

The high court has issued a number of rulings in the past few years favorable to businesses and Justice Kavanaugh's appointment will help cement a strong, pro-business court for years to come. In the past, Justice Kavanaugh has objected to expanding powers of federal agencies regarding issuing new regulations, which is perceived as very pro-business. Justice Kavanaugh has also been critical of the Consumer Financial Protection Bureau, a group created while President Obama was in office and heavily scrutinized by Republicans.

Contact Attorney Joseph Laverty in our Davenport office at (563)333-9102 or by email at
Purchaser Beware
By Walter J. Liszka, Esq.
If you are acquiring a Company through purchase and you are not paying close attention to potential Labor issues, you could be creating serious and risky problems for the future. It is extremely important to understand that liability in the context of Labor and Employment related issues are governed by Contract and Common Law Successorship with an overriding theme of "protecting the little guy." This is vastly different from the traditional Corporate Veil Piercing Analysis that exists in traditional Corporate Law.

While some people would conclude that Indemnification Clauses from the Seller, where the Seller agrees to accept all responsibility for any violations that occurred prior to closing, may look good, one of the biggest misconceptions is that these clauses will insulate the Buyer from any post-closing Claims. At best, these Indemnification Clauses offer the opportunity to seek repayments of damages, costs and fees incurred from the Seller and may have little value if the Seller does not have the resources to "back up the Indemnification Clause."

Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at
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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.