|Kids’ Chance of Wisconsin is holding its annual education conference on Thursday, May 11, 2023, at the Renaissance Milwaukee, Hotel – Wauwatosa. Kids’ Chance is a non-profit organization that provides scholarships to children of seriously injured workers in Wisconsin.
Chelsie Springstead is a Kids’ Chance of Wisconsin Board Member and Doug Feldman is a Past President and current Ambassador.
Whether you are an Attorney, Employer, Safety/HR Manager, Claim Representative, or Nurse Case Manager, this is a must attend event! Please join us for a dynamic half-day seminar and networking opportunity.
If you are interested in attending or sponsoring this event, click here for more information 2023_Kids_Chance_of_WI_Seminar_Registration_Materials.pdf.
ILLINOIS GOVERNOR TO SIGN LEGISLATION PROVIDING MANDATORY PAID LEAVE FOR ALL WORKERS
February 27, 2023
By: Sally Piefer and Alexandra (Sasha) Chepov
On January 10, 2023, both houses of the Illinois legislature passed the Paid Leave for All Workers Act (the “Act”), which requires private employers to provide a minimum of 40 hours of paid leave for employees to use for any reason. Governor Pritzker has indicated that he will pass the Act. Therefore, Illinois employers should take all necessary actions to ensure that their policies and practices are compliant with the requirements imposed by the new law prior to the Act’s effective date, January 1, 2024.
The Act applies to all employees who work in the State of Illinois. However, the Act does not apply to employees who are covered by a collective bargaining agreement and work in the construction industry or for an employer that provides services nationally and internationally of delivery, pickup, and transportation of parcels, documents and freight.
Any employer who employs at least one employee in the State of Illinois is subject to the requirements of the Act. However, the Act does not apply to any employer that is covered by a municipal or county ordinance, which is in effect on the effective date of the Act, that requires employers to give any form of paid leave to their employees, including paid sick leave or other paid leave. Employers in municipalities or counties that enact or amend a local ordinance that provides paid leave, including paid sick leave, after the effective date of this Act must only comply with the local ordinance or other ordinance as long as the benefits, rights and remedies are greater than or equal to that afforded under the Act.
The Act requires all employers to provide and allow their employees to use and take a minimum of 40 hours of paid leave during a 12-month period. The 12-month period may be any consecutive 12-month period designated by the employer in writing at the time of an employee’s hire or the time the employer implements a policy consistent with the Act’s requirements.
The Act provides two methods by which an employer can offer its employees paid leave. If an employer accrues leave under the Act, the leave accrues at a rate of 1 hour of paid leave for every 40 hours worked up to a minimum of 40 hours. Employees who are exempt from the overtime requirements of the federal Fair Labor Standards Act are deemed to have worked 40 hours each workweek for purposes of paid leave accrual. An employee who earns paid leave under the Act on an accrual basis begins to accrue leave at the commencement of their employment or on the effective date of this Act, January 1, 2024, whichever is later.
Employers also have the option of offering their employees a minimum of 40 hours of paid leave at an employee’s time of hire or the first day of the 12-month period.
An employee may take paid leave under the Act for any reason of the employee’s choosing and is not required to provide their employer with a reason for leave. Paid leave under the Act must be provided upon on the oral or written request of an employee in accordance with the employer’s reasonable paid leave policy notification requirements which may include the following:
- When use of paid leave is foreseeable, employers may require the employee to provide 7 calendar days’ notice before the date the leave is expected to begin.
- When use of paid leave is not foreseeable, the employee is required to provide such notice as soon as is practicable after the employee is aware of the necessity of leave.
The Act provides that employers who require notice of paid leave under the Act when the leave is not foreseeable must provide a written policy that contains procedures for employees to provide notice. Employers are prohibited from denying the use of leave to an employee because of noncompliance with an employer’s leave notification policies, unless the employer has provided a written copy of its notification policy to the employee. The Act further provides that an employee may not be required to provide documentation or certification as proof or in support of the leave. An employee may also choose whether to use paid leave provided under this Act prior to using any other leave provided by the employer or state law. Employees may not be required to search for or find a replacement worker to cover the hours which the employee takes paid leave.
Under the Act, it is unlawful for any employer to threaten or take any adverse action against an employee because the employee:
- Exercises rights or attempts to exercise rights under the Act,
- Opposes practices which the employee believes to be in violation of the Act, or
- Supports the exercise of rights of another under the Act.
Further, the Act provides that it is unlawful for employers to consider the use of paid leave by an employee as a negative factor in any employment action that involves evaluating, promoting, disciplining or counting paid leave under a no-fault attendance policy.
Employees who believe that they have been unlawfully retaliated against are entitled to file a claim with the Department and may recover all legal and equitable relief as may be deemed appropriate.
Many employers already have leave policies. Paid leave under this Act is not intended to be charged or otherwise credited to an employee’s paid time off bank or employee account unless the employer’s policy permits such a credit. However, employers should be cautious if they do so, because this could inadvertently result in having to pay any unused paid leave to an employee upon their separation to the same extent as vacation time under existing Illinois law must be paid.
The extent to which employers subject to the Act’s requirements must modify their existing policy will undoubtedly vary. Employers should ensure that management is informed and appropriately trained on the Act’s requirements, and should ensure that their policies and procedures are compliant with the Act’s provision prior to January 1, 2024.
If you have questions about this material or require assistance in reviewing and updating your policies, please contact Sally Piefer by email at email@example.com or Alexandra (Sasha) Chepov by email at firstname.lastname@example.org, or any other attorney you have been working with here at Lindner & Marsack, S.C.
EMPLOYERS MUST EXERCISE CARE IN DRAFTING SEVERANCE AGREEMENTS IN LIGHT OF RECENT LABOR BOARD DECISION
February 23, 2023
By: Alexandra (Sasha) Chepov and Oyvind Wistrom
The National Labor Relations Board (NLRB) issued a landmark decision on Tuesday affecting the validity of various provisions typically found in employee severance agreements. The NLRB in McLaren Macomb, 372 NLRB No. 58 (Feb. 21, 2023) ruled that an employer violates Section 8(a)(1) of the National Labor Relations Act (NLRA) if a severance agreement contains a non-disparagement or confidentiality clause that restricts an employee’s ability to exercise their rights under the NLRA. The NLRB’s decision in McLaren Macomb not only restricts that which an employer can include or offer an employee in future severance agreements, but calls into question the validity of past agreements.
Prior to the NLRB’s decision in McLaren Macomb, severance agreements containing non-disparagement and/or confidentiality provisions were generally deemed lawful under the NLRA so long as the employer did not commit a separate Unfair Labor Practice (ULP) by discriminating against their employees by implementing such an agreement against the backdrop of union organizing or other protected activity. However, in McLaren Macomb, the NLRB abandoned this practice and revived an old standard by which severance agreements will be assessed going forward.
After an employer offered its permanently furloughed employees severance agreements that contained a non-disparagement and confidentiality clauses, eleven bargaining unit employees filed ULP charges on the basis that these clauses violated the NLRA. Notably, the non-disparagement clause at issue prohibited these employees from making statements that could disparage or harm the image of the company, its parent, affiliated entities and their officers, directors, agents, and representatives. Further, the severance agreement prohibited these employees from disclosing the terms of the agreement to any third person.
In deciding the issue, the NLRB held that the standard non-disparagement and confidentiality clauses in the severance agreements were unlawful due to the broad scope of the provisions and the effect that the provisions had on the employees’ ability to exercise their rights under the NLRA. Specifically, the NLRB held that such clauses tend to chill the exercise of an employee’s Section 7 rights to collectively band together in an effort to improve the workplace, and therefore such clauses violated Section 8(a)(1) of the NLRA.
The NLRB’s decision in McLaren Macomb, marks a stark departure from the standard employed by the Trump-Era NLRB, and the decision applies to both the enforcement of fully-executed severance agreements that contain such clauses, and agreements that are merely offered to employees.
Although not explicitly addressed by the NLRB, a well-crafted disclaimer may protect such agreements from running afoul of the NLRB’s decision. However, such disclaimers must unequivocally allow employees to participate in Section 7 activities, file or assist others in filing ULP charges, and to otherwise cooperate with the NLRB’s investigative process. It is possible that this ruling will be followed by a General Counsel Advisory Memo in the coming months offering more concrete examples of lawful severance covenants.
As the NLRB’s holding in McLaren Macomb applies to virtually all private-sector employers, regardless of whether their workplace is unionized, employers should review and revise their severance agreements to ensure they are in compliance with the new standard established by the Board.
If you have questions about this material, please contact Alexandra (Sasha) Chepov by email at email@example.com or Oyvind Wistrom at firstname.lastname@example.org, or any other attorney you have been working with here at Lindner & Marsack, S.C.
EXPANDED PROTECTIONS FOR PREGNANT AND NURSING EMPLOYEES
January 9, 2023
By: Samantha J. Wood
On December 29, 2022, President Biden signed into law an omnibus appropriations bill, which expands protections for pregnant and nursing employees under The Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act.
The Pregnant Workers Fairness Act
The PWFA, which goes into effect in June 2023, extends the protections for pregnant workers in the same manner as is available under the Americans with Disabilities Act (ADA). Specifically, the new law requires employers with 15 or more employees to provide reasonable accommodations for pregnant employees and prohibits employment practices that discriminate against qualified employees affected by pregnancy, childbirth, or related medical conditions. The Act makes it unlawful to take any of the following adverse actions:
- Refuse to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee, unless such accommodation would impose an undue hardship on the operation of the business;
- Require a qualified employee to accept an accommodation other than a reasonable accommodation arrived at through an interactive process;
- Deny employment opportunities to the employee if such denial is based on the need to make reasonable accommodations;
- Require the employee to take paid or unpaid leave if another reasonable accommodation can be provided that would enable the employee to continue working; or
- Take an adverse employment action against the employee because the employee requested or used a reasonable accommodation.
Although pregnancy accommodation requirements have been recognized since 2015 pursuant to the U.S. Supreme Court’s decision in Young v. UPS, 575 U.S. 206 (2015), that decision only required employers to accommodate pregnant workers in the same manner as it accommodated other similarly situated non-pregnant employees. Therefore, if an employer did not accommodate employees with temporary conditions, it did not have to accommodate pregnancy-related limitations under federal law. The PWFA takes this decision one step further by requiring employers to accommodate pregnant employees irrespective of what the employer does for employees affected by other temporary conditions. Under the PWFA, pregnant workers will be entitled to accommodations regardless of whether similarly situated non-pregnant workers were given accommodations.
Further, the PWFA provides that employees may seek enforcement and relief under this Act in the same manner as pregnancy discrimination claims under Title VII of the Civil Rights Act. In the coming months, the Equal Employment Opportunity Commission (EEOC) is expected to adopt rules providing examples of reasonable accommodations addressing known limitations related to pregnancy, childbirth and related medical conditions.
Providing Urgent Maternal Protections for Nursing Mothers Act
The PUMP Act, which went into effect on December 29, 2022, expands workplace protections for employees who need to express breast milk following the birth of a child. Since 2010, federal law has required that employers provide non-exempt employees with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child. Employers with less than 50 employees are exempt from this requirement if it would impose an undue hardship on their business.
The PUMP Act expands the 2010 requirements by requiring that employers provide reasonable break time and a private place (other than a bathroom) to express breast milk to both exempt and non-exempt employees. The break time may remain unpaid, unless the employee is not completely relieved from duty during the entirety of the break.
The PUMP Act further provides that before commencing an action against an employer, the employee must notify the employer of its non-compliance. The employer then has up to ten (10) days to come into compliance with the required accommodations.
Employers should ensure management is notified and appropriately trained on these changes, and should also ensure that their policies and procedures are updated and in compliance with these new laws. We will continue to monitor the EEOC’s issuance of rules relating to the PWFA and will provide updates when those rules have been made available.
If you have questions about this material, please contact Samantha J. Wood by email at email@example.com, or any other attorney you have been working with here at Lindner & Marsack, S.C.
FTC PROPOSING EXPANSIVE BAN ON NON-COMPETE AGREEMENTS
By: Sally A. Piefer
January 5, 2023
Non-compete and non-solicitation agreements have become relatively commonplace. However, these agreements have been under increasing attack by state legislatures across the country. President Biden also expressed that one of the items on his regulatory agenda is to eliminate all non-compete agreements except for those necessary to protect trade secrets.
Back in 2021, President Biden issued an Executive Order on Promoting Competition in the American Economy, which encouraged the Federal Trade Commission (FTC) to ban or limit non-compete agreements. Later that year, the FTC and Department of Justice (DOJ) held a virtual workshop on competition. The FTC believes that non-compete agreements constitute an unfair method of limiting competition and violate Section 5 of the Federal Trade Commission Act.
Earlier this week, the FTC announced that it took legal action against three companies, suing the companies to prevent them from using what the FTC described as unlawful non-compete restrictions. See https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-cracks-down-companies-impose-harmful-noncompete-restrictions-thousands-workers.
Today, the FTC released a proposed rule that would prohibit all non-compete agreements – except for those entered into between buyers and sellers of a business. The proposed rule, available from https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking, spans some 200+ pages, and proposes to:
- Find that all non-compete clauses are an unfair method of competition and would ban employers from entering into such agreements with employees and independent contractors; and
- Require employers to rescind existing non-compete clauses and affirmatively notify employees the contracts are no longer valid.
While the proposed rule states that customer non-solicitation agreements or confidentiality or non-disclosure agreements would not be impacted, the proposed rule also clarifies that these covenants “would be considered non-compete clauses where they are so unusually broad in scope that they function as such.”
If approved, the proposed rule would supersede any state law, regulation or order which is inconsistent with the FTC’s regulation. Public comment on the proposed rule is available for the next 60 days. Employers and other interested individuals can submit comments online at https://www.regulations.gov.
If you have questions about the proposed rule, or any questions about non-compete, non-solicitation and/or confidentiality agreements, please contact Sally Piefer at 414-226-4818 or firstname.lastname@example.org, or contact your regular Lindner & Marsack attorney.
LINDNER & MARSACK, S.C., ANNOUNCES 2022 SUPER LAWYERS AND 2023 BEST LAWYERS DESIGNATIONS
Lindner & Marsack, S.C., today announced team members acknowledged by Super Lawyers magazine. Honorees include Douglas Feldman, Gary Marsack, Daniel Pedriana, Andrew Quartaro and Oyvind Wistrom, along with Melissa Stone and Samantha Wood who were named by the organization as “Rising Stars.”
U.S. News & World Report and Best Lawyers also announced their designations for 2023, which includes Feldman and Wistrom as well as Daniel Finerty and Jonathan Swain.
“Our primary goal is to help employers in Wisconsin and across the country minimize risks and navigate their toughest legal challenges,” said Wistrom, Firm President. “First and foremost, we’re dedicated to advancing the interests and success of our clients. To be recognized for that work by leading industry publications and rankings adds another element of pride and satisfaction for our entire team.”
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. Attorneys are selected using a rigorous, multi-phase rating process in which peer nominations and evaluations are combined with third party research. The objective of the program is to create a credible, comprehensive, and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel.
Similarly, Best Lawyers rankings are based on a rigorous process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.
Continuation of Dues Checkoff Now Considered Status Quo by Divided NLRB
By: Kristofor L. Hanson
In a 3-2 ruling by the five-member National Labor Relations Board, employers must now continue to deduct union dues – otherwise known as dues checkoff – from workers’ paychecks even after collective bargaining agreements containing such provisions expire. Valley Hospital Medical Center, Inc., N.L.R.B., Case 28-CA-213783 (Sept. 30, 2022). This ruling represents a return to the standard of the Board under President Obama after just three years during which dues checkoff could be discontinued in the event of contract expiration.
The Board relied on precedent that states that employers and unions must maintain the “status quo” when a CBA expires, and found that there has been no cogent explanation by the Board or courts as to why that did not apply to dues checkoff. The Board stated that its decision “definitively resolves this issue by confirming that it is a violation of the Act to unilaterally stop dues checkoff when a contract expires.”
The decision is clearly favorable to unions as they have become increasingly concerned with their ability to continue dues collection once a contract expires, a vital conduit for union revenue. This decision likewise ends the availability of this economic weapon for employers in the face of labor strife.
Employers must now maintain dues checkoff along with wages, benefits, and other terms and conditions of workers’ employment upon the expiration of a collective bargaining agreement. This was an objective of Board General Counsel Jennifer Abruzzo once her nomination was approved by Congress.
Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about the recent ruling by the National Labor Relations Board or any other labor or employment issue involving your business, please contact us at any time.
NLRB ISSUES NOTICE OF PROPOSED RULEMAKING ON JOINT-EMPLOYER STATUS
September 7, 2022
By: David Keating
On September 6, 2022, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking as to the legal standard for determining joint-employer status under the National Labor Relations Act (NLRA).
Under the current analysis of joint-employer status established by the NLRB during the Trump administration in 2020, a company must exercise “substantial direct and immediate control” over essential terms and conditions of employment to be considered the employer of another company’s employees. “Substantial direct and immediate control” is defined as “direct and immediate control that has a regular or continuous consequential effect on an essential term or condition of employment of another employer’s employees.” The NLRB further stated that indirect control or contractually-reserved control that is not exercised would not establish a joint employer relationship.
By contrast, the proposed rule lessens the standard by which joint employment will be established. Employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.” The proposed rule would define “share and codetermine” to mean “for an employer to possess the authority to control (whether directly, indirectly, or both), or to exercise the power to control (whether directly, indirectly, or both), one or more of the employees’ essential terms and conditions of employment.” Further, the proposal states that “possessing the authority to control is sufficient to establish status as a joint employer, regardless of whether control is exercised.”
The proposed rule expands upon what will be deemed an “essential term and condition of employment.” Under the 2020 rule’s exhaustive list, wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction are essential terms and conditions. The proposed rule adds certain terms and conditions such as “control over workplace health and safety” and “rules and directions governing the manner, means, and methods of work performance.” The proposed rule indicates that the list is not exhaustive and requires “flexibility” in the future.
If adopted, the impact of the proposed rule on employers that utilize or provide sourced labor will likely be dramatic. More workers will be deemed joint employees of two legally separate entities.
The NLRA provides that joint employers have a duty to bargain with a union and are both subject to unfair labor practice charges and potential liability.
The NLRB will accept public comment on the proposed rulemaking before finalizing the rule on or before November 7, 2022. A reply to those comments received during the initial comment period must be received by the NLRB on or before November 21, 2022. We will monitor this matter closely.
A copy of the Notice can be found here.
Lindner & Marsack, S.C. represents employers in all areas of labor and employment law. If you have any questions about the recent proposed rule by the National Labor Relations Board or any other labor or employment issue involving your business, please contact us at any time.
EMPLOYER NOT REQUIRED TO OFFER LIGHT DUTY POSITIONS TO PREGNANT EMPLOYEES
By: Oyvind Wistrom
The Seventh Circuit Court of Appeals in EEOC v. Wal-Mart Stores East, L.P., No 21-1690 (7th Cir. Aug. 16, 2022) recently recognized that an employer has the right to exclude pregnant workers from its light duty work program created for employees injured on the job. While the case addressed only the exclusion of pregnant workers under the Pregnancy Discrimination Act (PDA) and Title VII of the Civil Rights Act of 1964, the decision may also have implications under the Americans with Disabilities Act (ADA).
Walmart’s light duty program provided that employees with lifting restrictions caused by a work injury could be offered temporary light duty work while they healed. However, Walmart did not extend its light duty to workers injured off the job or to pregnant workers. Instead, it required pregnant workers with lifting or other physical restrictions to take a medical leave of absence. The U.S. Equal Employment Opportunity Commission (EEOC) sue Walmart over the policy on behalf of a class of workers who were denied light duty positions during their pregnancy, and the U.S. District Court for the Western District of Wisconsin granted summary judgment for the employer.
On appeal, the Seventh Circuit agreed with the lower court and affirmed the grant of summary judgment. The panel of three judges determined that Walmart provided a legitimate reason for only offering light duty to workers injured on the job. The Court noted that “offering temporary light duty to workers injured on the job pursuant to a state worker’s compensation law is a ‘legitimate nondiscriminatory’ justification for denying accommodations … to everyone else, such as individuals not injured on the job, including pregnant women.” Because the company acted pursuant to a neutral worker’s compensation program that benefited employees injured on the job while limiting its labor costs and exposure to worker’s comp claims, the policy did not violate the PDA or Title VII.
Notwithstanding its ruling, the Seventh Circuit noted that employers that offer light duty to employees with job-related injuries may violate the PDA when they also provide light duty work to other groups of workers, but not to pregnant employees. For example, if an employer implements a light duty program in which it offers light duty to employees with temporary restrictions from work-related and non-work-related injuries, but specifically excludes pregnant workers from its policy, such a policy would violate the law. There was no evidence in the record, however, that Walmart offered light duty to workers whose injuries did not occur on the job.
While the case did not expressly address the ADA, it should be noted an employer has an obligation to provide a reasonable accommodation to a worker with a disability. In this regard, an employer must apply its policy of creating a light duty position for an employee when s/he is occupationally injured on a non-discriminatory basis. While the Seventh Circuit’s decision only addressed a claim of pregnancy discrimination, the decision would appear to allow employers to restrict its light duty policy to employees with occupational injuries and exclude employees with non-work-related restrictions (including workers with disabilities). This is especially so where the company’s light duty work program does not have a set number of positions, but rather positions are created, as necessary, for each worker who sustains an occupational injury.
If you have questions or need assistance, please contact the Lindner & Marsack attorney with whom you regularly work.
2022 WI Work Comp Forum Registration Now Open!
Please join us for the 20th Anniversary of the Wisconsin Worker’s Compensation Forum on October 5 and 6, 2022, at the Brookfield Conference Center. In addition to programming, the event offers networking, an Exhibitor Hall, attendee giveaways, and the popular Happy Hours!
Our very own Chelsie Springstead is the current President of the WIWC Forum. Additionally, Doug Feldman, Oyvind Wistrom and Sally Piefer are presenters at this year’s Forum.
If you are unable to attend in person, a virtual option will be offered again this year. The in-person sessions will be livestreamed and virtual attendees will be eligible for CEUs.
Register early and save! Early bird registration through August 31:
Wednesday Only – $69
Thursday Only – $109
Full Forum In-Person and Virtual (Wed/Thurs) – $139
Regular price (September 1-23):
Wednesday Only – $79
Thursday Only – $129
Full Forum In-Person and Virtual (Wed/Thurs) – $159
If you are interested in attending, click here more information and to register.