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Firm News

On the Lighter Side

On the Lighter Side

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Firm News on Wednesday, May 2, 2018.

Dick Wessels’ Client Visits and Restaurant Tips

Client visits: You may have heard that our firm’s founder, Dick Wessels, since 1985 has had a practice of paying a short visit to clients and friends of Wessels Sherman. His deep conviction is that it is important to actually visit the place of business to get a feel of what they are all about. Dick has never wavered in this belief. He knows how busy managers are so he never stays longer than 10 minutes. Dick regularly says he will leave mid-sentence if it goes into the 11th minute.

If you are up for a 10 minute visit from Dick, send me a message at najoerg@wesselssherman.com, and I will arrange it.

Restaurant tips: Because of his years of such Chicago area travels, Dick has a list of his top quick places for lunch. The list is skewed to the western suburbs because his principal office is in St. Charles. The list is entitled RHW’s All-Star List of Truly Local Lunch Establishments in the Western Suburbs. (Focus is on a good quick lunch at a venue that has character/history). It has pictures and his personal commentary. If you would like a copy of his list, e-mail me at najoerg@wesselssherman.com.

Dick hopes you will enjoy his list, and he hopes to pay you a ten minute visit soon!

Related Posts: Wessels Sherman Offers a New Service to its Clients – Early Mediation of Internal Workplace Disputes!, Wessels Sherman’s 2017 Employer Empowerment Seminar in Minnesota is Another Big Success! , SAVE THE DATE: Friday, April 28th, 2017!!!, Wessels Sherman is Pleased to Announce that Allison Wells has Joined our Firm as an Associate Attorney in our Minneapolis, MN Office.

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Categories
Discrimination

Over 40 Need Not Apply?

Over 40 Need Not Apply?

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Tuesday, May 22, 2018.

One of the constants over the last few decades in Labor and Employment Law has been the fact that our society has become more litigious (i.e. people file lawsuits at the drop of a hat). Unfortunately, that saga now seems to be impacting the “older generation” as well.

On April 26, 2018, the Seventh Circuit Court of Appeals became the first Federal Court of Appeals to hold that a job applicant can, in fact, bring a Disparate Impact Claim under the Age Discrimination in Employment Act. In Kleber v. CareFusion Corp., No. 17-1206 (2018), a divided panel reinstated a previously dismissed claim at the United States District Court level of a fifty-eight (58) year old attorney who had extensive experience and applied, but was not selected, for an in-house job that had been advertised as “requiring three (3) to seven (7) years – no more than seven (7) years – of relevant legal experience.” The Seventh Circuit (covering Illinois, Indiana and Wisconsin) is the first and only Federal Court of Appeals to make such a finding although a California District Court (Rabin v. PricewaterhouseCoopers LLP, 236 F. Supp. 3d 1126 (2017)) and the Equal Employment Opportunity Commission have taken the exact same position – i.e. the Age Discrimination and Employment Act does, in fact, provide to “applicants for employment” the same protections as “employees” with regard to “Disparate Impact Claims.”

This conflict arises under the fact that the Age Discrimination in Employment Act Disparate Impact Provision (29 U.S.C. § 623(a)(2)) refers to “employees” unlike the statutes in the Disparate Treatment Provision (29 U.S.C. § 623(a)(1)), which refer more broadly to the term “individuals”. Whether or not the decision of the Seventh Circuit Court of Appeals will become the “law of the land” is subject to speculation, but Employers within the Seventh Circuit’s Jurisdiction should examine their hiring practices to determine whether these practices tend to disadvantage older workers and thereby create a “Disparate Impact” and face the possibility of the costly burden of litigation.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com

Related Posts: “OK, Boomer!”, Seventh Circuit Decision-Use Of The “N-Word”, He Who Hesitates May be Lost, What Happens if a Current or Former Employee Files a Charge of Discrimination with the Illinois Department of Human Rights (IDHR)?

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Categories
Arbitration

Supreme Court’s Ruling Regarding Arbitration Clauses is Positive News for Employers

Supreme Court’s Ruling Regarding Arbitration Clauses is Positive News for Employers

By Joseph H. Laverty of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Arbitration on Wednesday, May 30, 2018.

On May 21, 2018, in a 5-4 majority decision, the U.S. Supreme Court in Epic Systems Corp. v. Lewis ruled that employers can require as a condition of employment that workers waive their rights to participate in class action lawsuits by entering into a mandatory arbitration clause in their employment agreement. Supreme Court Justice Neil Gorsuch wrote the majority opinion which sided with businesses whose employment contracts include mandatory arbitration clauses that prevent class action lawsuits. The Court ruled that workers who have signed agreements with these types of clauses included in the document must pursue their claims individually and not as part of a class action. The Court’s ruling strengthens employers’ arguments that employment contracts that impose mandatory arbitration clauses regarding disputes of any kind do not violate their employees’ constitutional rights. Many businesses impose mandatory arbitration clauses that specifically forbid class action lawsuits. With this most recent ruling it is estimated that companies will increasingly use these types of clauses to limit their liability exposure.

Mandatory arbitration clauses in employment agreements are likely to be used with more frequency because such clauses can limit an employees’ ability to be represented collectively in a class action lawsuit against their employer and therefore reduce the legal exposure for companies. This decision specifically stated that an employer’s right to enforce arbitration agreements under the Federal Arbitration Act does not conflict with workers’ rights under the National Labor Relations Act (NLRA). This ruling is significant for employers in limiting potential liability and reducing the costs in defending class action lawsuits. Employers need to be careful how they draft arbitration provisions, but if done correctly, these provisions can be very beneficial to employers.

The decision applied to a number of consolidated cases. However, in each case, workers sought to have their Fair Labor Standards Act wage-and-hour claims litigated as class/collective actions, claiming that they had been underpaid. In each case, the employer had employees sign employment agreements which require the employees to resolve such disputes in arbitration rather than in court and that they file their claims one by one. This case determined how far companies can go in insisting that disputes be resolved in individual arbitrations rather than in Court. Critics of the decision claim it will hurt workers’ rights by allowing class actions to be stamped out through arbitration agreements.

Arbitration clauses with class waivers are commonplace in contracts for cell phones, credit cards, rental cars and nursing home care contracts. After this ruling it is expected that many more employers will have this type of clause in their employment agreements. In this Supreme Court case, workers argued that employment contracts are different. They argued that the NLRA prohibited class waivers and that the NLRA protected workers’ rights to engage in “concerted activities.” A majority of the Supreme Court believed otherwise. The practical result of the Supreme Court ruling is that if companies have well drafted arbitration clauses in their employment agreements, they can limit their employees’ ability to go to court to sue over alleged violations of workplace laws – instead employees would need to go through the process of binding arbitration and bring their complaints as individuals and not as part of any group or class. This revision will greatly benefit employers in the long run. Wessels Sherman can help employers draft employment agreements that include mandatory arbitration clauses.

Questions? Contact Attorney Joseph Laverty in our Davenport office at (563) 333-9102 or by email at jolaverty@wesselssherman.com

Related Posts: Illinois Workplace Transparency Act, Arbitration Agreements and Class Action Litigation, New Prime Loses In Its Attempt To Compel Arbitration In Interstate Trucking Case, Yes, Have Your Independent Contractors (Or Employees) Sign An Agreement To Arbitrate Disputes And Waive Their Rights To Class Action Suits!!

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