Client Alert
September, 2018
Sexual Conduct Does Not Always Constitute Sex Discrimination
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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.
Wait, what? If the conduct directed at an employee is sexual in nature or has sexual connotations, doesn't that automatically make it unlawful sexual harassment? Not necessarily.

In Smith v. Rosebud Farm, Inc., Case No. 17-2626 (7 th Cir. Aug. 02, 2018), the Seventh Circuit Court of Appeals, which governs Illinois, Wisconsin and Indiana, recently revisited a somewhat esoteric, but important nuance in the law governing sexual harassment: "Title VII is an anti-discrimination statute, not an anti-harassment statute." That is, unwanted sexual behavior is not necessarily actionable under Title VII simply because the conduct at issue has sexual content or connotations. There must still be evidence that it was directed at an individual because of his/her sex, or that members of one sex were treated differently than the other.

I-9 Audit Notices on the Rise
By Walter J. Liszka, Esq.
With all the furor in the media with regard to the "Border Wall" and United States immigration policy, Employers are losing sight of an even more prominent threat. The Homeland Security Investigations Unit (HSI), which is the investigative agency within the United States Immigration and Customs Enforcement Group and responsible for Form I-9 compliance, has ratcheted up Inspection Notices for Employers. In point of fact, since the beginning of the current Government Fiscal Year, the HSI has served well over 2,800 Notices of Inspection and made thirty-two (32) arrests in connection with onsite Form I-9 compliance. It should be noted that in the last Fiscal Year, the same entity initiated 1,360 I-9 Audits and obviously that is showing a tremendous increase. While the Border Wall and overall immigration policy may eventually impact the Federal Budget and tax dollars, a more important concern for Employers is the HSI "knocking on the door right now!"

Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at
Exotic Dancers Found By Jury To Be Misclassified Independent Contractors
By Nancy E. Joerg, Esq.
Exotic dancers can be properly classified as either employees or independent contractors depending on how the working relationship is structured. But when the independent contractors believe they have been misclassified and should have really been employees, lawsuits may result.

THRESHOLD LEGAL ISSUE: A Florida federal jury (under the U.S. District Court for the Southern District of Florida) has found an adult entertainment club liable (for wages and overtime) to eight exotic dancers for a whopping $1.8 million. Espinoza v. Galardi South Enterprises Inc., No. 14-cv-21244 (S. D. Florida June 27, 2018). The threshold legal issue of this lawsuit was whether the dancers were independent contractors or employees under Federal wage and hour laws (Fair Labor Standards Act).

Contact Attorney Nancy Joerg in our St. Charles office at (630) 377-1554 or by email at
OSHA Joint Employer Liability!
By Walter J. Liszka, Esq.
The Occupational Safety and Health Administration (OSHA) has just reminded Temporary Staffing Agencies and their clients (i.e. the Host Employer) that they are jointly liable and responsible for a Temporary Employee's safety and health in two (2) new Guidance Documents relating to respiratory protection, noise exposure and hearing conservation.

Nearly two (2) years after its last Bulletin Issuance, Occupational Safety and Health has advised in Temporary Working Initiative Bulletin No. 8 - Respiratory Protection and Initiative Bulletin No. 9 - Noise Exposure and Hearing Conservation that there is a shared responsibility between Host Employers and Temporary Staffing Agencies. Under Bulletin No. 8, OSHA advises both the Host Employer and Staffing Agency that they are "jointly responsible to ensure that Workers wear appropriate respiratory equipment when required." Both the Host Employer and the Staffing Agency are jointly responsible to establish that the Employee is properly protected in accordance with Standard No. 8 and neither the Host Employer nor the Staffing Agency can require that the Worker provide or pay for their own respiratory protection if it is required.

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