Lawyer to Lawyer Newsletter
October 2016
Dedicated to providing fellow lawyers, as well as accountants and other business advisers, with the latest news on the developing law of the workplace, written by nationally recognized lawyers who are committed to representing employers exclusively in matters of labor, employment, immigration and human resources law.
From the Desk of James B. Sherman, President/CEO:
The Department of Labor recently paid $7 million to settle claims that it failed to pay DOL employees overtime for time they were "suffered or permitted to work," dating back to 2006. The DOL is the government agency that enforces the FLSA's requirements that employers pay minimum wage and overtime based on "hours worked." Many private employers have been the target of stepped up efforts by the DOL in the form of audits and lawsuits in recent years. If misery loves company, however, the DOL has been accused of doing exactly the same thing that it regularly accuses employers of doing. The size of the settlement is no different than what many employers in the private sector have had to pay (and more) to resolve these sorts of claims, which typically are brought as class actions.

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EEOC Sues Employer, Providing Reminder that Employers May Need to Provide Accommodations for Pregnant Employees
Although pregnancy itself is not a disability under the Americans with Disabilities Act, pregnancy-related conditions that substantially limit an employee's major life activities, even temporarily, may entitle the employee to accommodations for her condition. If a pregnant employee states that she cannot work, or cannot perform certain job functions, employers should engage in an interactive process with the employee to determine whether her condition can be reasonably accommodated within her current position, and if not, whether there are other vacant positions for which she is qualified, with or without reasonable accommodations. It is this last step that is the subject of a recent lawsuit brought by the EEOC. According to the EEOC's Complaint, A bank manager was unable to work for the majority of her pregnancy, due to a medical condition. After allowing the employee several months of leave, her employer informed her that if she was not released to return to work, she would be replaced, but she was free to apply to other open positions. To assist her, she was given access to third-party redeployment services. However, despite applying for multiple open positions for which she met the minimum qualifications, both before and after she was eventually terminated, she was not placed into any of these positions.
For the first time since 1998, the EEOC has published updated guidance on workplace retaliation. Retaliation charges are by far the most common and fastest growing type of claim filed with the EEOC, comprising nearly 45 percent of all charges it now receives. Given the surge in retaliation claims and the additional attention these claims are receiving from the EEOC, employers need to know what activities are protected from retaliation.
Among other things the new EEOC guidance addresses:
  • The scope of employee activity protected by the laws, which includes "participation" in the EEO process-by raising a claim, testifying, assisting or participating in an investigation, proceeding or hearing under these laws-as well as "opposing" discrimination.
  • Examples of retaliatory actions that would be likely to deter a reasonable person from engaging in protected activity.
  • Guidance on the ADA's unique prohibition on "interference" with the exercise of rights under the law, which is broader than the anti-retaliation provision.
  • Best practices to minimize the likelihood of retaliation violations.
Minneapolis Office of Wessels Sherman is Piling Up Victories
Believe it or not, we here at Wessels Sherman are reluctant to toot our own horn the way others in our profession are known to do. However, a recent spate of victories by our Minneapolis office on behalf of some very happy clients - in arbitration, in court, and before federal and state agencies in Minnesota and Wisconsin - seems like a good excuse to brag a bit. Besides, it is impossible to keep the many kudos I've been getting lately from so many clients from going to my head just a little, such that I feel compelled to share with our readers a few of the recent wins our Minneapolis office has achieved with our clients.
  • Prevailed in arbitration regarding a grievance over prescription drug coverage under union contract language negotiated in the wake of the Affordable Care Act (Obama Care).
  • Secured the Equal Employment Opportunity Commission's (EEOC) dismissal of race/national origin discrimination claims.
  • Obtained dismissal of two separate Minnesota Department of Human Rights (MDHR) age discrimination claims against the same employer, and when one of the cases was appealed it was affirmed by the Commissioner.
  • Had previous Wisconsin Equal Rights Division (ERD) and LIRC decisions dismissing age discrimination claims, affirmed on appeal for judicial review before the La Crosse County Circuit Court.
  • Won dismissal of disability discrimination claims by the EEOC, following a lengthy investigation.
Prevailing in court, in arbitration, or before federal and state administrative agencies such as the EEOC, MDHR, or ERD takes a team effort where we as lawyers spearhead the defense and legal strategies, but always with solid facts and evidence provided by our clients. It is truly an honor to work with great clients to prove that they've done nothing wrong and to win; it is why we love doing what we do!

Our annual, multi-state super seminar on all things labor and employment law for business owners, human resources professionals, accounts, attorneys, etc. will take place at the  Radisson Blu Hotel at the Mall of America on Friday, April 28th, 2017.
CLE and CPE credits will be applied for.
About Us
We regularly work with other lawyers, accountants and business advisers as a trusted resource for their clients, whether as co-counsel, local counsel (from any of our 5 offices in MN, WI, IL or IA), or referrals in our concentrated area of practice. Your client relationships as a referring professional are highly respected. Our goal is to provide your clients with exceptional and cost conscious representation in our concentrated area of practice.


James B. Sherman, Esq.
Wessels Sherman
Contact James Sherman at:
(952) 746-1700