Categories
Non-Compete

Non-Compete Statute Applies To No-Raiding Provisions

Non-Compete Statute Applies To No-Raiding Provisions

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Non-Compete on Thursday, March 15, 2018.

The enforcement of non-compete agreements in Wisconsin is governed by the provisions of Wis. Stat. § 103.466, which sets forth five requirements that must be met in order for the restriction to be enforceable. Over the years, the courts have found that these restrictions applied not just to traditional non-compete agreements, but also to agreements not to solicit customers, non-disclosure/confidentiality agreements, and no-hire agreements between two employers. It therefore comes as no surprise that the Wisconsin Supreme Court recently held that the restrictions found in § 103.465 also apply to “no-raiding” covenants, which restrict former employees from soliciting or “poaching” employees of their former employer.

In Manitowoc Company v. Lanning, 2018 WI 6 (January. 19, 2018), the Wisconsin Supreme Court held that such “no raiding” or “no poaching” restrictions constitute restraints of trade of the nature that Section 103.465 was intended to address. Therefore, in order to be enforceable, they must satisfy all the requirements of the statute. The court then held that the specific “no-raiding” provision at issue in the case before it was not enforceable because it was overly broad, barring the solicitation of “any employee,” which could be read to include every one of the company’s 13,000 employees world-wide, regardless of their position, relationship with the departing employee or geographic location.

As always, when drafting non-compete agreements and similar restrictive covenants, employers must take care to ensure that they are narrowly drafted and focus entirely on the competitive threat posed by the particular employee and the position that he/she occupies.

If you have any questions feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

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Categories
Hiring/Firing

Expunged Conviction Not A “Conviction” Under WFEA

Expunged Conviction Not A “Conviction” Under WFEA

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Hiring/Firing on Tuesday, March 20, 2018.

HR professionals that conduct criminal background checks on prospective employees are well aware of (or should be) the Wisconsin Fair Employment Act’s prohibition against discrimination on the basis of an individual’s arrest or conviction record. Under the WFEA, an employer may not discriminate against an employee or prospective employee on the basis of a pending arrest or conviction, unless the circumstances of the arrest/conviction are substantially related to the circumstances of the proposed employment. Easy enough? Not really.

For example, what if a conviction, even if substantially related to the individual’s proposed employment, has been expunged from his record? Under the Wisconsin expungement statute, Wis. Stat. Sec. 973.015(2m)(g), individuals who commit crimes before the age of 25 may request expungement of the offense from their record if it is determined that “the person will benefit and society will not be harmed.” Once an offense has been expunged, all references to the individual’s name and identity are to be obliterated from the record, which allows certain offenders to “wipe the slate clean of their offenses and present themselves to the world – including future employers – unmarked by their past wrongdoing.” State v. Hemp, 353 Wis.2d 146, 157 (Wis. App. 2014).

In Staten v. Holton Manor, ERD Case No. 2013030311 (LIRC, Jan. 30, 2018), the Wisconsin Labor and Industry Review Commission considered the relation between the expungement statute and a “conviction record” under the WFEA, finding that a conviction that has been expunged cannot be considered by an employer under any circumstances, even if the underlying expunged offense was “substantially related” to the employment. The Commission also found that non-criminal ordinance violations (e.g., municipal citations) constitute “other offenses” under the statute and may be considered when reviewing an individual’s record. Thus, a municipal conviction for disorderly conduct arising out of a confrontation between a prospective employee and her boyfriend (in which she lost her temper and stuck him several times) was found “substantially related” to her proposed employment as a certified nursing assistant, since the character traits revealed by the conviction include a tendency to lose control and commit acts of violence against someone who angered or displeased her – such as a vulnerable, elderly resident of a nursing home.

Attempting to discern the relation between a prospective employee’s pending arrest (you can NEVER consider an arrest that did not result in a conviction) or conviction and his/her proposed employment can be very tricky and not nearly as obvious as you may think. Employers must take special caution when making these decisions, fully cognizant of the prohibitions of the Wisconsin Fair Employment Act and how it has been interpreted.

If you have any questions feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

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Categories
Employment Policies and Procedures

Don’t Have a Neutral Absenteeism Policy: Warning to Employers!

Don’t Have a Neutral Absenteeism Policy: Warning to Employers!

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Employment Policies and Procedures on Tuesday, March 6, 2018.

Some Illinois employers may have neutral absenteeism policies that “administratively terminate” any employee who has failed to return to work from a medical leave of absence after a stated period of time such as one year or some other period of time set by the company.

This kind of policy is not advisable because it is probably a violation of the Americans with Disabilities Act (ADA). In a class action suit a number of years ago against a major employer by the United States Equal Employment Opportunity Commission (EEOC) it was argued by the EEOC that such a policy violated the ADA. The case settled for over six million dollars. The EEOC alleged that employers are required to assess medical leaves of absences under the Americans with Disabilities Act on an individual employee basis, rather than by following a set rule for all employees.

Thus, the prudent employer should have a personal leave of absence policy to be assessed by the employer on a case-by-case basis with no stated set limits (e.g., 12 weeks).

If you have any questions, please contact attorney Anthony J. Caruso, Jr., in our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com

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Categories
Workers Compensation

Temporary Employees May Sue Host Employers for Injuries

Temporary Employees May Sue Host Employers for Injuries

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Workers Compensation on Monday, March 19, 2018.

In a stunning recent decision, the Wisconsin Court of Appeals held that temporary employees who are injured/killed while performing services for their host employer have the right to choose between the receipt of workers’ compensation benefits under the Wisconsin Worker’s Compensation Act or the pursuit of a personal injury claim against the host employer. Under the Wisconsin Worker’s Compensation Act, temporary employees who are injured while performing services for their host employer and “make a claim” for worker’s compensation benefits are precluded from maintaining an action in tort against the employer that compensates the temporary agency for their services (i.e., the “host” employer). Thus, if the employee makes a claim for worker’s compensation benefits against the temporary agency, he/she may not pursue a personal injury claim against the employer for which it was performing services when injured. But what if the employee never “makes a claim for compensation” against the temporary employer, and chooses instead to sue the host employer?

In Estate of Carlos Rivera v. West Bend Mutual, 2017 AP 142 (Jan. 9, 2018), the Wisconsin Court of Appeals held that ability to choose a course of action implied by the “makes a claim” language in Wis. Stat. § 102.29(6)(b), means that the bar against pursuing a tort claim against the host employer only applies if the employee “makes a claim” for benefits – but not if he does not. Rivera was killed in a car accident while performing temporary services for his host employer, and, tragically, never had the need for the more immediate payment of traditional worker’s compensation benefits for lost wages, medical expenses, permanent disability, etc., without having to go to court and prove the employer was at fault. Instead, his estate was faced with the choice of seeking medical expenses and death benefits under the WC statute, or a potentially more lucrative claim for wrongful death through the court system, where it could recover damages for pain and suffering, and his minor children’s loss of society, companionship and support.

The court’s decision upsets the historic foundation of the worker’s compensation act and the purpose of the exclusive remedy provision. A Petition for Review has been filed with the Wisconsin Supreme Court, and I expect the court will either overturn the appeal court’s decision or the issue it has created will be addressed by the legislature.

If you have any questions feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

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Categories
Union Matters

Unions Continue to Win Significant Percentage of Representation Elections in 2017

Unions Continue to Win Significant Percentage of Representation Elections in 2017

On behalf of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Union Matters on Sunday, March 18, 2018.

According to a report just issued by Labor Relations Institute (LRI), unions won 71% of the representation elections conducted by the National Labor Relations Board (NLRB) in 2017. This is consistent with union success rates in recent years and has resulted in over 54,000 newly organized union members last year. Meanwhile, unions lost approximately 4,000 members through decertification elections, where union members voted to oust union representatives. The appearance of a net gain of 50,000 new union members is offset by the fact that unions are filing far fewer petitions for elections these days.

The higher win rate for unions can be attributed in part to the Board’s “micro-unit” decision (allowing unions to organize small groups of employees) and its so-called “ambush election” rule. Implemented in April 14, 2015, the rule decreased the amount of time between a union’s filing of an “RC”, or representation petition, and the election date set by the NLRB. The average time between a union’s petition to the NLRB to hold a representation election, and the election itself, has shrunk to just 23 days! Elections on such short notice effectively prevents employers from campaigning against unionization and prevents employees from making an informed decision; like spotting the union a 25 yard head start in a 50 yard race.

Changes to the NLRB under the Trump Administration hold the promise of reeling back pro-union policies and procedures implemented under the Obama Administration. However, until then employers wishing to remain union free are well advised to have a prepared plan of action in place before any union comes around trying to organize employees. Union success rate may be 70% or more, on average, but this can be significantly lowered for your organization by taking appropriate preventative measures.

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Union Matters

Union Organizing–“This Is An Emergency!”

Union Organizing–“This Is An Emergency!”

By Richard H. Wessels of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Union Matters on Friday, March 16, 2018.

Nancy Joerg heard me talking on the phone with a client the other day. She liked the advice and asked me to write a commentary for our next Wessels Sherman Client Alert. The subject that I was discussing with a company president was one that doesn’t get much attention these days-union organizing.

Union organizing in the private sector is down dramatically. The numbers are startling. No more than a few decades ago, we saw about 8,000 union organizing petitions filed by labor unions across the country annually. (These are the traditional petitions to bring about an NLRB election.) Today the number is about 1,300 annually. For quite a few years, I have been writing about the reasons, and our readers are familiar with the undeniable factors at work. But, a new phenomenon has developed.

Now, when union organizing develops, it usually is really serious. Labor unions today simply don’t have lots of organizers out there pounding the pavement looking for new targets. They don’t have the money to do this. So, when there is organizing activity, it is usually the employees who have contacted the union, not the other way around. That’s trouble. Back in the days when union campaigns were far more frequent and unions were all over the place trying to stir up trouble, we tended to use a “watch and wait” strategy to see if there was any employee interest. We didn’t want to overreact. That’s questionable strategy today. If you are hearing union talk, it is serious. It is a call to action, not watch and wait.

What caught Nancy’s attention were my comments about recent really good responses by some of my clients. I related to the client tales of potentially tough union organizing campaigns nipped in the bud by swift decisive action. One company president was at the scene the same afternoon rumors were heard. Another, early the next morning. In both situations, all that was needed were meetings with employees and a good line of communication established. No illegal threats, promises or interrogation. Just plain old good communication. In talking with my concerned company president, I bemoaned the fact that all too many of my clients don’t understand and put a trip to the plant on the calendar for perhaps next week if they can get around to it. That’s too late.

My bias today is for swift and decisive action. Every time we have been able to get our client’s best communicator on the scene with a sense of urgency, the union talk is nipped in the bud. Sometimes it’s hardly more than showing the flag as they say. And, it can easily be done without running afoul of NLRB ground rules. When I ended the phone call, the company president was getting in the car for the hour long drive to the plant. I have every confidence that there will be no union organizing petition filed with this group!

Questions? Contact Dick Wessels in our St. Charles office at (630) 377-1554 or by email at riwessels@wesselssherman.com

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