Author Archives: Mary Gemeinhardt

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:

  1. 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
  2. Require employers to rescind existing non-compete clauses and affirmatively notify employees the contracts are no longer valid.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 spiefer@lindner-marsack.com, 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.

PLEASE JOIN US FOR THE 10 YEAR ANNIVERSARY CHARITY GALA FOR KIDS’ CHANCE OF WISCONSIN

Kids’ Chance of Wisconsin is celebrating its 10 year anniversary with a charity gala at Westmoor Country Club on Saturday, September 24, 2022. 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. Doug will be acting as a Live Auctioneer for the evening. In addition, Pat Connaughton of the Milwaukee Bucks will be the keynote speaker.

If you are interested in attending or sponsoring this event, click here for more information https://kidschanceofwi.org/10-year-anniversary-charity-gala/.

LINDNER & MARSACK, S.C., WELCOMES JUSTIN SCHUESSLER AND ALEXANDRA CHEPOV TO GROWING TEAM OF LABOR & EMPLOYMENT ATTORNEYS

Lindner & Marsack, S.C., announced today that Alexandra (Sasha) Chepov and Justin Schuessler have joined the firm. Both attorneys will practice out of Lindner & Marsack’s Milwaukee headquarters.

A recent graduate of Marquette University Law School, Chepov has been serving as a law clerk with Lindner & Marsack since January. As an Associate Attorney, her practice is dedicated to providing employers with legal advice and rigorous representation in labor and employment litigation matters including wage and hour (FLSA), employment discrimination, harassment and retaliation (Title VII, ADA, ADEA), immigration, family and medical leave (FMLA), restrictive covenant agreements (non-competition, non-solicitation, confidentiality), severance agreements and general labor relations. In addition, coming from a family of business owners, Chepov brings a unique perspective and experience to guiding employers of all sizes in customizing employment practices and policies that best promote their unique business interests and objectives to maintain proper practices and avoid litigation.

While in law school, Ms. Chepov served as the President of the Moot Court Executive Board, participated in the Honor’s Moot Court Competition, and competed in the national labor and employment moot court competition.

As an Associate Attorney, Schuessler’s practice focuses on defending worker’s compensation claims throughout the State of Wisconsin. His previous experience handling in-house worker’s compensation matters for a multi-billion-dollar corporation doing business across North America cultivated a comprehensive understanding of the worker’s compensation frameworks of various jurisdictions across the United States. Prior that that experience, Mr. Schuessler defended corporations and their carriers in a similar role at Kasdorf, Lewis, & Swietlik.

Schuessler received his law degree from Marquette University Law School in 2012 and his Bachelors of Arts from the University of Wisconsin-Milwaukee in 2009. While in law school, Mr. Schuessler clerked for Milwaukee Office of the National Labor Relations Board and also worked part-time for a Milwaukee-based claimant’s firm gaining knowledge and experience to help him better defend employers and their carriers.

“As our team continues to grow, so does the depth and breath of our experience across the full spectrum of labor and employment law services we deliver for employers in Wisconsin and beyond,” says Firm President Oyvind Wistrom. “Justin and Sasha both exemplify the qualities we value most – dedication, integrity and fortitude – that foster collaboration among our team members and ensure we are at our best in helping clients navigate their toughest legal challenges.”

WORKER’S COMPENSATION LEGAL UPDATE: WISCONSIN LEGISLATURE INCREASES WEEKLY PPD RATE; CHANGES AVERAGE WEEKLY WAGE CALCULATION FOR PART-TIME EMPLOYEES

By: Daniel Pedriana and Vanja Pemac

On April 8, 2022, Governor Evers signed into law 2021 Wisconsin Act 232 (The Act). The Act, sponsored by the bipartisan House Labor and Integrated Employment Committee, was passed to increase weekly permanent partial disability (PPD) benefits in addition to changing the way that the average weekly wage (AWW) for part-time employees is calculated.

Wisconsin has not raised the weekly PPD benefit rate since 2017. The Act changes the weekly PPD benefit to $415.00 for injuries occurring on or after April 10, 2022. The Act further increases the weekly PPD benefit to $430.00 for injuries occurring on or after January 1, 2023.

The new default rule in Wisconsin is that part-time work (work below 35 hours per week) is expanded to 40 hours per week for purposes of calculating the average weekly wage (AWW). The Wisconsin legislature recognizes that an injury at a part-time job can often have full-time vocational effects for employees, as an injury at one part-time job may hinder an employee’s ability to participate in other part-time job. Thus, the default expansion to a 40 hour workweek may remediate the vocational impact of a work injury.

Previously, a claimant needed to meet four conditions to be considered “part of a class” and have their hours set below 40:

  1. All class members needed to be performing the same type of work at the same location;
  2. The class of part-time employees needed to represent a minimum of 10% of all employees doing the same type of work;
  3. The claimant needed to have a regular schedule that did not vary more than five hours from week to week in the 13 weeks before the injury; and
  4. At least one other employee needed to be in the same class as the claimant.

If the claimant met all of these conditions, their hours would reflect the hours actually worked or expanded to the statutory minimum of 24 hours. If the claimant did not meet all of the conditions demonstrating a regularly scheduled class of part-time employees, their hours would be expanded to reflect a full-time schedule of 40 hours.

Now, the “part of a class” section of the law is eliminated. Any claimant who is engaged in part-time work and injured on or after April 9, 2022, will be considered full time if they worked at the part-time job for twelve months or less. If the claimant had another part-time job, they would be considered full time.

If an employee has worked at a part-time job for twelve months or more and does not have another part-time job, AWW is determined in conjunction with Wis. Stat. § 102.11(1)(ap)(1)(a) or (b), whichever is greater. Subsection (a) provides that AWW will be determined by analyzing actual average weekly earnings for the 52 calendar weeks before the injury, except for the weeks in which no work was performed. Subsection (b) provides that AWW will be determined by the employee’s hourly earnings on the date of the injury multiplied by the average weekly hours worked, except for the weeks in which no work was performed. Both calculations shall be computed and the higher of the two shall be used as the employee’s AWW.

The Act does not affect the ability of the employer to argue that the claimant is self-restricted to part-time work. An employer may rebut the default expansion to a 40 hour workweek for AWW determination by showing proof that the employee chose to work less than full time. Such evidence may include a signed statement by the employee limiting their work hours or other documentation showing an hour or shift preference. Any rebuttal by the employer does not affect the statutory minimum of a 24 hour workweek for AWW calculation.

If you have questions or need assistance, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue providing updates as we learn more about the new Act.

NLRB General Counsel Announces Challenge to Employer Rights During Union Organizing Campaigns

By: Kristofor Hanson

In a new memorandum published today, National Labor Relations Board (the “Board”) General Counsel, Jennifer Abruzzo, stated aloud what many had thought would be a goal of the newly appointed chief lawyer for the agency, challenging an employer’s ability to require employees to attend meetings during a union organizing campaign.

In so doing, Abruzzo has asked the Board to reconsider its precedent and find that mandatory meetings – often referred to as “captive audience” meetings – are unlawful. The General Counsel has taken the position that such meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.” The protected rights to which she refers are those rights granted to workers under Section 7 of the National Labor Relations Act (the “Act”). Those rights include “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 rights also include the right of a worker to “refrain from any or all such activities.”

The precedent the General Counsel asks the Board to reconsider dates to 1948 in Babcock & Wilcox Co., 77 NLRB 577 (1948), when the Board found that employers are entitled to require employees, during their work hours, to attend meetings to discuss issues related to a union organizing campaign. Under the Act, Employers are allowed to present factual information to employees during such meetings. They are not, however, allowed to make promises or threaten employees. Accordingly, the Act already places limitations on employers regarding what can be presented during captive audience meetings.

Nevertheless, the General Counsel has taken the position that requiring employees to attend meetings during their working hours crosses a line into the area of coercion and “plainly chills employees’ protected right to refrain from listening to this speech in violation of [the Act].”

Therefore, Abruzzo has asked the Board to revisit this issue and allow employees to refrain from attending any meeting where union organizing will be discussed on paid time and any discussion in which an employee “is cornered by management while performing their job duties.”

The General Counsel contends that imposing these protections will not impair employers’ rights to freedom of expression. However, she does not provide any insight into the mechanisms employers may use to get their message out to employees during an organizing campaign. Those mechanisms will likely be left to meetings on paid time, attendance at which will be entirely voluntary, as well as postings and mailings that have been traditionally used during organizing campaigns.

This request by the General Counsel will likely be met favorably by the Board should it hear a case concerning this issue, as the current Board is comprised of a majority of union-friendly members. The Board may soon hear such a case as complaints on this subject were filed during the recent, failed union organizing campaign at an Amazon facility in Alabama. Should the Board reach a decision on such a case, we will promptly update you with details.

In the meantime, captive audience meetings are still allowed and are an effective way for an employer to get its message out during a union organizing campaign. In these meetings, employers should direct their communications to facts, opinions, and experience with unions, but avoid coercive or threatening language, or promising employees benefits that they may receive should they vote against unionization.

Should you have questions concerning this or any other labor and employment matter, please contact our offices for assistance.