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Other

New Illinois Laws in the New Year

New Illinois Laws in the New Year

By Attorneys of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Other on Monday, December 30, 2019.

Because 2020 is a year filled with new employment laws for Illinois with effective various dates, we thought our clients would appreciate having a simple list to serve as a reminder of some key changes:

New Illinois Law and Effective date

  • Recreational marijuana legalized – January 1, 2020
  • New legal requirements for separation and release agreements – January 1, 2020
  • New legal requirements for arbitration agreements – January 1, 2020
  • Add “gender violence” as another protected category to VESSA policies – January 1, 2020
  • Add independent contractors, non-employees, vendors, consultants, and volunteers to harassment and discrimination policies and complaint protections – January 1, 2020
  • Require special sex harassment training for restaurant and bar employees – January 1, 2020
  • Add wording “perceived and actual” to Equal Employment Opportunity policies, which expands protection from discrimination – January 1, 2020
  • Employers must report discrimination complaints and settlements that occur during the mandated reporting period to Illinois Department of Human Rights – July 1, 2020
  • Employers to provide hotel and casino workers mandatory panic buttons to provide protection from sex harassment and/or assaults – July 1, 2020
  • City of Chicago requires certain industries to provide employee work schedules in advance – July 1, 2020

If you have any questions or concerns about the new laws, please contact us.

Tags: New Illinois Laws for 2020, Panic buttons, Recreational marijuana, VESSA, arbitration agreements, sex harrassment training

Related Posts: Illinois Changing Employment Landscape, Get Ready! All Owners of Hotels and Casinos in Illinois Must Soon Protect their Employees from Sexual Assault and Harassment with Panic Button Safety Devices!, So You Have A Whistleblower, Illinois – Catching Up To California?!

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Independent Contractor

IRS Form SS-8 Continues To Upset And Confuse Employers Across The U.S.!

IRS Form SS-8 Continues To Upset And Confuse Employers Across The U.S.!

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Independent Contractor on Monday, December 2, 2019.

The IRS SS-8 Program allows either a Company or a Worker to request that the IRS evaluate and determine whether the Worker is an employee or an independent contractor for Federal/IRS Purposes. The resulting Determination by the IRS SS-8 Unit is just the SS-8 Unit’s “opinion” (not an actual audit!).

Either party can start the IRS SS-8 request. Most frequently, it is a disgruntled Worker who submits the request by filing an IRS Form SS-8 (Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding). The Worker claims to the IRS SS-8 Unit that he/she was misclassified by the Company and therefore should not be asked to now pay self-employment tax.

NO REQUIRED WITHHOLDINGS FOR INDEPENDENT CONTRACTORS: When the Company classifies a Worker as an independent contractor, the Company does not make any withholdings from a Worker’s paycheck as the Company would do for a W-2 employee. When a Company uses independent contractors, the Company saves money on the payroll taxes and does not have the significant cost of employee benefits like vacation pay, profit sharing plans, bonuses, overtime costs, etc. The Company usually issues an IRS Form 1099 to the independent contractor.

WITHHOLDINGS REQUIRED FOR EMPLOYEES: On the other hand, if the Company classifies a worker as a W-2 employee, the Company must withhold certain Federal income taxes, Social Security, and Medicare taxes.

Employees (as opposed to independent contractors) pay 7.65% of payroll taxes and the employer pays its 7.65% share with the total amount paid being 15.3%. Independent contractors shoulder the entire 15.3% of payroll taxes.

LEGAL CHALLENGE: Companies may face a legal challenge if the Company classifies the Worker as an independent contractor, but the Worker believes he/she is really an employee. Often this issue arises if a “terminated” independent contractor/Worker files for unemployment insurance.

Also, a disgruntled worker who is classified as an independent contractor (but believes he/she should be an employee) will sometimes contact the IRS to file an IRS Form SS-8 (which is a four page questionnaire), asking the IRS to make a determination as to whether the Worker is an employee or an independent contractor.

FILING AN IRS FORM SS-8: The IRS Form SS-8 cannot be filed anonymously. The IRS only issues determination letters based on actual real life Worker/Company relationships. The IRS SS-8 Unit evaluates real facts as described in detail by the parties.

Most companies (wisely) do not initiate an SS-8 request (most of the evaluations by the IRS SS-8 Unit find that the Worker is an employee and not an independent contractor).

WHEN A COMPANY RECEIVES AN IRS SS-8 FILED BY A WORKER: The Company can either fill out the IRS Form SS-8 or choose to not respond. It is in essence a voluntary process for both parties.

When the Company doesn’t respond, then the only information the IRS SS-8 Unit gets is from the Worker making the complaint. This of course gives the SS-8 Unit a very one- sided view of the alleged independent contractor relationship (which greatly increases the likelihood that the SS-8 Unit will find that the Worker is misclassified).

IRS FORM SS-8 DETERMINATION: After gathering detailed information, the IRS applies the law regarding independent contractor status and renders a detailed written decision called a Determination (and that written Determination will be sent to both the Company and the Worker).

This Determination letter will not request a specific amount of money to be paid or even a specific action which must be taken. It is written in a strange tone of voice which is largely in the form of a suggestion rather than a legal mandate.

SECTION 530: Companies involved in an IRS SS-8 controversy should be aware that if the Company is entitled to Section 530 of the Internal Revenue Act of 1978 (also called “Safe Haven” or “Safe Harbor”), this powerful relief is still available regardless of the legal conclusion of the IRS SS-8 Unit as announced in the Determination. When Section 530 relief is available, the IRS cannot force the Company to reclassify the affected workers to employee status.

Also be aware that neither the IRS SS-8 Determination process nor the review of any records in connection with the Determination constitutes an official IRS tax audit. Strangely there are not official procedures to appeal or protest an IRS SS-8 Unit Determination.

This is a complex legal issue. Before a Company ventures forth with a response to an IRS SS-8 request letter, consult with an experienced attorney to understand your options.

Questions?: For further information on this issue and various strategy steps to take in the face of such an IRS request or any independent contractor questions or concerns, please contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Yes, You Can Win Before an IDES Hearing Officer on the Issue of Independent Contractor Status!!, Psychological Counselors In Pennsylvania Found To Be Independent Contractors, Yes, There are Certain Categories of Workers Who Are Independent Contractors By Law Under the Illinois Unemployment Insurance Act, Independent Contractor Surgeon Cannot Sue Hospital For Discrimination Under Title VII

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Independent Contractor

Yes, You Can Win Before an IDES Hearing Officer on the Issue of Independent Contractor Status!!

Yes, You Can Win Before an IDES Hearing Officer on the Issue of Independent Contractor Status!!

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Independent Contractor on Friday, December 13, 2019.

Many clients are convinced that it is “hopeless” to protest the often disappointing results of an Illinois Department of Employment Security (IDES) audit and then win at a Hearing before an IDES Hearing Officer.

It is true that IDES Hearing Officers (called Administrative Law Judges) are employees of the IDES. Therefore, clients often believe that because the Hearing Officers are employees of the IDES, they cannot be objective and unbiased, but rather these Administrative Law Judges will always agree with the IDES auditor and not the Company who has been audited (and then assessed for back “contributions” to the IDES-i.e., back unemployment insurance taxes).

This is surprisingly not true. Over the many years that I have worked with companies in protesting IDES audits and then weathering the experience of an IDES Hearing, I have found that if the Company has sufficient evidence and testimony to convince an IDES Hearing Officer that the workers at issue are independent contractors under Section 212(A), (B), and (C) of the Illinois Unemployment Insurance Act (legal definition of independent contractor), then the IDES Hearing Officer WILL usually cancel the Determination & Assessment (i.e., the tax bill), in whole or in part.

This article is about a very satisfying total legal victory that one of our law firm’s clients (fictitious name, Champion Builders) enjoyed last month. Our client is an Illinois general contractor who builds various commercial projects. Champion Builders manages the project, bids the jobs and is involved in design interpretation services.

Champion Builders uses independent contractors who perform various specialty functions such as spray foam insulation, installation of countertops, painting, installation of cabinets, striping of parking lots, roofing, etc.

SECTION 212: Champion Builders was audited by the IDES for the years 2011 and 2012. The IDES auditor then reclassified the independent contractors to employees, finding that the Company did not meet its burden of proof under Section 212(A), (B), and (C) of the Illinois Unemployment Insurance Act. Section 212 is the strict three-part test evaluating when workers are exempt from employment, in other words are independent contractors under Illinois unemployment insurance law.

Below is the text of Section 212:

“Service performed by an indi­vidual for an employing unit, whether or not such individual employs others in connection with the per­formance of such services, shall be deemed to be employment unless and until it is proven in any proceeding where such issue is involved that –

A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and

B. Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

C. Such individual is engaged in an independently established trade, occu­pation, profession, or busi­ness.”

CLIENT PROTESTED DETERMINATION & ASSESSMENT (TAX BILL): Since the IDES auditor reclassified the independent contractors to employees, although Champion Builders tried very hard to persuade the auditor otherwise, Champion Builders received a Determination & Assessment (tax bill) from the IDES. Champion Builders protested the Determination & Assessment within the strict 20 days allowed by law, and requested a Hearing before an IDES Hearing Officer.

IDES HEARING OFFICER’S DECISION: After five years passed from the date of the Notice of Determination & Assessment, a telephone Hearing was held in July 2019.

In November 2019, the IDES Hearing Officer issued a fair and very well-reasoned written Decision and concluded that Champion Builders met its legal burden with respect to proving that the workers at issue were independent contractors and not employees under Section 212 of the Illinois Unemployment Insurance Act. The IDES Hearing Officer’s findings included the following:

  • Section 212A (direction and control): The IDES Hearing Officer noted (with approval) that the independent contractors at issue were given no tools, training, materials or specific instructions by Champion Builders. The Hearing Officer noted that under Section 212(A) of the Illinois Unemployment Insurance Act, Champion Builders may control the outcome of the work (ok for an independent contractor), but not the manner or means in which the work is completed (as would be the case with an employee). The Hearing Officer noted with further approval that the independent contractors bid on work in a competitive process in which they choose whether to take the work offered, thus demonstrating the entrepreneurial posture of an independent contractor, not an employee.
  • Section 212B (course or place of business): The IDES Hearing Officer found that the independent contractors at issue did not perform the “same or substantially similar” work as Champion Builders. All had specialties and offered the kind of services that Champion Builders does not offer. This analysis by the IDES Hearing Officer was crucial to the legal victory for Champion Builders. If Champion Builders flunked Section 212(B), the entire case would have been lost. Section 212(A), (B), and (C) is a three-part test. All three parts must be passed to result in a legal finding of independent contractor status.
  • Section 212C (independently established): The IDES Hearing Officer found that the independent contractors at issue all held themselves out to the public as working for their own or other companies. The Hearing Officer noted that Champion Builders offered as evidence business cards, t-shirts, signs on trucks, Internet listings and websites for each of the independent contractors at issue. Additionally, some of the independent contractors also had contracts and 1099s from other general contractors (showing that the independent contractors worked for other companies as well as Champion Builders).

Happily, the IDES Hearing Officer decided that the entire Determination & Assessment issued against Champion Builders should be cancelled in total. Naturally the client was very pleased at this result.

IMPORTANCE OF ESTABLISHING AND MAINTAINING INDEPENDENT CONTRACTOR FILES: Note that in this case, Champion Builders had a great deal of evidence for each of the independent contractors to show that the independent contractors were well established businesses in their own right. The auditor didn’t properly appreciate the wealth of evidence of independent contractor status, but the IDES Hearing Officer (a licensed attorney) was able to properly evaluate it.

When I work with clients on reducing their liability and risk in using independent contractors, I always recommend they set up and maintain an independent contractor file on each independent contractor filled with proof of self-employment.

This article is intended to convey a powerful lesson: Yes, an Illinois company can successfully protest the results of an IDES audit, but it is important to have well maintained independent contractor files so that you can prove at an eventual IDES Hearing that the independent contractors are self-employed entities.

For assistance with IDES audits, hearings, and independent contractor agreements (or for consultations on limiting your liability in the use of independent contractors), contact Attorney Nancy E. Joerg, who enjoys a nationwide reputation in working with companies who use Independent Contractors of all types. Nancy Joerg can be reached at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: IRS Form SS-8 Continues To Upset And Confuse Employers Across The U.S.!, Psychological Counselors In Pennsylvania Found To Be Independent Contractors, Yes, There are Certain Categories of Workers Who Are Independent Contractors By Law Under the Illinois Unemployment Insurance Act, Independent Contractor Surgeon Cannot Sue Hospital For Discrimination Under Title VII

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Categories
Harassment

Internal Harassment Complaints

Internal Harassment Complaints

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Harassment on Wednesday, December 4, 2019.

With the advent of the Me Too Movement and the extensive number of harassment complaints that have been played out in the public forum by the news media, an Employer, on a daily basis, can be confronted with an internal harassment complaint that requires prompt and accurate action by the Employer. Since the Complaint allegedly purports to represent an allegation of wrong-doing in the workplace, it may lead, if not handled correctly, to costly and time consuming litigation as well as potential workplace morale problems and/or issues. This article will attempt to address the potential mistakes that an Employer can make when they receive an internal harassment complaint.


1.  Bringing the Complainant and the Accused Together for Discussion.

When an individual raises a Complaint of being harassed in the workplace, the worst thing that can happen is that that individual is placed in the same room with the alleged harasser and asked to discuss the incident. Under no circumstances should the Complainant and the alleged harasser be brought together for a “clearing the air meeting”. The Complainant should be requested and required to reduce the complaint to written form and the alleged harasser should be independently met with and advised of the facts and circumstances of the Complaint and also be required to submit a written statement. These written statements become a crucial part of the investigation and also the protection for the Employer if, at a later time, the “complaint changes”.

2. Make Certain that in the Written Statements of the Complainant and the Alleged Harasser, that they Provide Concrete and Clear Information with Regard to any Potential Witnesses.

These potential witnesses, and each and every one of them, should be interviewed by the Employer and, as well, make written statements that become part of the investigation. Make sure to ask each witness to provide the names of additional witnesses who could have observed any events. This will also help to substantiate that a “full and complete investigation” has taken place. Failure to interview a potential witness will often negate the benefit of the “Business Judgment Rule” under which a Court will defer to the Employer’s determination with regard to the resolution of an internal Complaint if it is done fairly.

3. Gather Any and All Relevant Information.

This will Include Emails, Personnel Files, Security Camera Footage, Text Messages and Maybe even Messages made on Outside Social Media Accounts.

When interviewing the Complainant, the alleged harasser and any potential witnesses, information of their postings on social media accounts should be inquired into and gathered. These social media posts may be very crucial to the investigation and resolution of the Complaint.

4. Inform the Complainant and the Accused of the Outcome.

Regardless of what occurs in the investigation, it is an absolute necessity for the Employer to inform both the Complainant and the Accused of the outcome of the investigation. It is strongly recommended that this advice of the outcome be done in written form to both parties and that those documents be retained as part of the internal investigation materials. This information about the outcome of the investigation should be clearly communicated to both the Complainant and the Accused even if the Employer deems the Complaint to be unsubstantiated.

5. Complainant’s Goal in Filing Complaint.

It is extremely important that the Employer find out from the Complainant the “objective” that the Complainant has in filing the Complaint. Does the Complainant wish to remain in the employ and be transferred to a different department? Is it appropriate, based on the investigation, to move the accused to a different department or business location? While the Employer does not have the responsibility of abandoning the ultimate decision to be made in a case to the Complainant to avoid “legal Liability”, making the Complainant a participant in the resolution of the matter may establish that the allegations have been taken seriously.

While most Employers will be extremely concerned (and not necessarily thrilled) with regard to the filing of a new Internal Harassment Complaint, this does not mean that the Complaint should not be fully and completely addressed in-house rather than in a litigation scenario. Employers should take Internal Complaints seriously and put themselves in the best position to minimize exposure and liability.

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

Related Posts: Seventh Circuit Decision-Use Of The “N-Word”, Illinois Workplace Transparency Act, Alert: Pending Legislation in Illinois Would Impose Huge Impact on Sexual Harassment Claims on all Employers, Alert: Pending Legislation in Illinois to Require Sexual Harassment Training of all Restaurant Employees

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Family and Medical Leave Act (FMLA)

You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims

You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Family and Medical Leave Act (FMLA) on Thursday, December 5, 2019.

By now it is almost cliché to talk about the “Bermuda Triangle” of employment law – difficult issues involving the ADA, FMLA and Worker’s Compensation and the consternation they cause employers. Recently, however, Wessels Sherman attorney Alan Seneczko, who manages the firm’s Wisconsin office, won a big victory for a client seemingly caught in that quagmire.

In Peters v. Dielectric Corporation, Case No. 18-cv-811 (E.D. Wis. Oct. 17, 2019), the plaintiff filed claims under the ADA and FMLA, alleging that the company failed to accommodate her disability and interfered with her right to reduced leave when it refused to allow her to work in her position 30 hours per week subject to a 20 pound lifting restriction, as she had been doing for three years due an alleged work-related back injury and the medical certifications she had submitted in connection with it. The company transferred her to another position after it was forced to eliminate part-time work in the position she had been working. She then claimed that the new position caused her problems and demanded to return to her former position.

In the meantime, the company received copies of records that the plaintiff had filed in support of her worker’s compensation claim, including reports from her treating physician and vocational experts. One document included permanent restrictions – which she had never presented to the company, that restricted her from performing any repetitive work with her hands, an essential function of her job. The report from her vocational expert included his conclusion that the requirements of her job exceeded her restrictions, as well as her report that her sister was helping her do the lifting, bending and carrying required of the job. After reviewing this information and conducting an interactive accommodation conference with the employee, the company concluded it had no work within the employee’s restrictions and terminated her employment, which prompted the ADA and FMLA claims.

Seneczko argued that, in light of the plaintiff’s permanent restrictions from her treating physician and the opinion of her own vocational experts, she was not a “qualified individual” protected under the ADA or entitled to leave under the FMLA, because she was not able to perform the essential functions of her job, with or without accommodation. He also argued that the representations she made in order to secure worker’s compensation and Social Security Disability benefits judicially estopped her from taking a contrary position in order to prevail in her ADA and FMLA claims. The court agreed and dismissed her case, finding:

Peters cannot have it both ways – she cannot assert an inability to do anything repetitive with her hands in the hopes of obtaining disability or worker’s compensation benefits, while at the same time present herself as able to perform the essential functions of her job . . . which includes repetitive use of the hands, in order to secure employment.

It reached a similar conclusion with respect to her FMLA claim:

If Peters now asserts that her medical condition was either not permanent or that the restriction regarding repetitive use of her hands was incorrect, that defies her assertions in her Social Security disability application, her worker’s compensation case, and her testimony in this case. While [the company] had been granting Peters intermittent FMLA leave for years, once it learned through her doctor’s restrictions that she could no longer perform the essential functions of the job . . . [it] had no duty under the FMLA to return Peters to her position.

Simply stated, you cannot have it both ways.

Oliver Wendell Holmes once said, “Do not be bullied out of your common sense by the specialist . . . ” The same can be said when dealing with issues under the ADA, FMLA and worker’s compensation. Sometimes, you just have to take people at their word – and that of their own experts.

If you have questions about the ADA, FMLA, duty to accommodate and/or worker’s compensation – and how to deal with all three of, feel free to contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

Related Posts: Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA, FMLA and Substance Abuse, Is Your Company Covered Under the Family and Medical Leave Act?, Extended Medical Leaves and the ADA: Court Provides Much-Needed, Long-Awaited Clarity

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Discrimination

“OK, Boomer!”

“OK, Boomer!”

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Discrimination on Monday, December 9, 2019.

Employers always seem to find themselves as the unwitting recipient/victim of the actions of others-sometimes other companies, sometimes the Government, but in almost all cases, some of their employees. Whether it is the Federal or State Government, the Me Too Movement or in this case, Generation Z and Millennials, Employers are always going to be “at the end of the line”.

As recently highlighted in a New York Times article, a new phrase has become emblematic of the “War Between Generations”. The term “Ok, Boomer!” which has been popularized on the Internet and, in particular on Twitter by Generation Z and Millennials is now being used to dismiss Baby Boomers thoughts and opinions which are sometimes viewed by the younger generation as paternalistic or just out of step. While many may find the term, “Ok, Boomer!” as a harmless way to point out generational differences, the phrase’s popularity could and will lead to problems in the workplace.

It is very clear that under the Age Discrimination In Employment Act, anyone over the age of 40 is in a protected status and, as such, has the right to raise a claim if they are mistreated due to their age. Whether a speaker believes they are well within their rights or are merely being cute and funny, a dismissive attitude about older workers can and will form the basis for a Claim for Discrimination and/or Harassment. In point of fact, the term “Ok, Boomer!” could be considered an outright slur!

The younger generation (Generation Z and Millennials Employees) must understand that derogatory or dismissive comments related to gender, race, religion, age, national origin, disability and sexual orientation are not only inappropriate and insulting, but can create legal liabilities for their Employer and possibly, for them as well. Given the heavy prevalence of Age Discrimination lawsuits that are arising, Employers, rather than being at the end of the line and solely a recipient, better start reminding their workforce about the improprieties of derogatory and dismissive comments to individuals over 40 and make sure their employees, whether Baby Boomers, Generation Z or Millennials leave the Generation Wars at the door. Just for the record, the author is 74 – any Generation Z or Millennial WANT TO COMMENT??

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

Related Posts: 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)?, Alert: Pending Legislation in Illinois Would Impose Huge Impact on Sexual Harassment Claims on all Employers

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Union Matters

Merry Christmas, and Happy New Year Employers

Merry Christmas, and Happy New Year Employers

By Walter J. Liszka of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Union Matters on Tuesday, December 17, 2019.

On December 13, 2019, the National Labor Relations Board finalized a new rule reversing some of the most problematic provisions of the “Ambush Election Regulations” that went into effect under former President Obama in 2015. While the new regulations did not rescind all of the Obama amendments, the modifications will be of great value to Employers in responding to Union Election Petitions and dealing with the vexing issue of Union Representation.

Here are some of the changes:

1. Post Election Hearing:

The “Ambush Election Regulations” attempted to speed up the entire process of the scheduling of Union Election by shortening the time between the date on which the Union filed a Petition and the date on which the Pre-Election Hearing was scheduled. Those regulations required the Pre-Election Hearing to be generally scheduled within eight (8) calendar days of a Petition’s filing. The new rules will require the Pre-Election Hearing to be scheduled to open fourteen (14) business days from the date of the filing of the Petition.

2. Statement of Position:

Under the “Ambush Election Regulations”, it was the obligation of an Employer to file a Statement of Position with regard to issues in dispute dealing with the Petitioned For Unit by noon on the day before the scheduled date of Hearing. The new rules will provide the Non-Petitioning Party (usually the Employer) eight (8) business days after the service of Notice of Hearing in which to prepare, file and serve the Position Statement. In addition, for the very first time, the Petitioning Party (usually the Union) will have to file its Statement of Position responding to the issues raised by the Employer within three (3) business days of the Hearing.

3. Resolution of Disputed Issues-Pre-Election:

Under the “Ambush Election Rules”, the resolution of disputes over the unit scope and voter eligibility were delayed until after the Election was held. In essence, individuals were allowed to vote as challenged voters and a decision with regard to their eligibility was to be resolved only if the challenged voters ballots/votes could affect the outcome of the Election. Under the revised rules, these issues will now be litigated pre-election and resolved at the Regional Director’s level before an Election is directed. It still will be possible for the parties to agree to allow some people to vote as challenged voters, but this would be by mutual agreement and not forced on the Employer.

4. Date of Election:

Under the “Ambush Election Regulations”, Regional Directors of the NLRB were required to schedule an Election at the earliest date practicable and, this usually meant within twenty-five (25) calendar days from the date the Petition was filed. Under the new rules, absent agreement by the parties, an Election will not be scheduled before the twentieth (20th) business day after the date of the issuance of a Direction of Election.

5. Providing of Voters List:

Under the “Ambush Election Regulations”, a list would have to be provided of eligible voters no later than two (2) business days after the Direction of an Election and, the Employer was required to furnish not only the Employee Name and Home Address of each Voter but also to provide Home Phone Numbers, Cell Phone Numbers and Personal Email Addresses and turn this information directly over to the Union. Under the new rules, an Employer will now have five (5) business days to furnish the Voter List to the NLRB and the Union, but will still have to provide that list with the Name, Home Address, Home Phone Number, Cellular Phone Number, Email Address and other pertinent identifiers (Shift, Job Classification).

6. Certification of Election Results:

Under the “Ambush Election Regulations”, Regional Directors will be required to issue a Certification Results of an Election in which the Union won even if the Employer was still appealing issues that could result in the Union Election being set aside. These scenarios usually arose on a filing of a Request For Review of the Region’s Decision with the Board. Under the new rules, Regional Directors will no longer be able to certify the results of an Election while such an appeal is pending or while the Employer still has time to file a Request For Review. This will prevent the Employer from being required to bargain while a Request For Review is pending.

These new Election Rules will become effective One-Hundred Twenty (120) calendar days after publication in the Federal Register. Obviously, these new Election Rules will again even the playing field for an Employer and give the Employer sufficient time in which to set forth its position on unionization to the Employee Compliment. It’s about time Santa Claus did give a present to Employers!

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

Related Posts: Life Raft For Multiemployer Pension Plans, Operating Engineers Local 150 Remains One of Northern Illinois Most Active Unions, No Recording Rules-NLRB Protected?, NLRB Grants Employers Greater Rights to Limit Union Activity on Premises

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Categories
Americans with Disabilities Act (ADA) Workers Compensation

You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims

You Can’t Have It Both Ways – Company Prevails In Case Involving Conflicting Representations In ADA, FMLA and Worker’s Compensation Claims

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Family and Medical Leave Act (FMLA) on Thursday, December 5, 2019.

By now it is almost cliché to talk about the “Bermuda Triangle” of employment law – difficult issues involving the ADA, FMLA and Worker’s Compensation and the consternation they cause employers. Recently, however, Wessels Sherman attorney Alan Seneczko, who manages the firm’s Wisconsin office, won a big victory for a client seemingly caught in that quagmire.

In Peters v. Dielectric Corporation, Case No. 18-cv-811 (E.D. Wis. Oct. 17, 2019), the plaintiff filed claims under the ADA and FMLA, alleging that the company failed to accommodate her disability and interfered with her right to reduced leave when it refused to allow her to work in her position 30 hours per week subject to a 20 pound lifting restriction, as she had been doing for three years due an alleged work-related back injury and the medical certifications she had submitted in connection with it. The company transferred her to another position after it was forced to eliminate part-time work in the position she had been working. She then claimed that the new position caused her problems and demanded to return to her former position.

In the meantime, the company received copies of records that the plaintiff had filed in support of her worker’s compensation claim, including reports from her treating physician and vocational experts. One document included permanent restrictions – which she had never presented to the company, that restricted her from performing any repetitive work with her hands, an essential function of her job. The report from her vocational expert included his conclusion that the requirements of her job exceeded her restrictions, as well as her report that her sister was helping her do the lifting, bending and carrying required of the job. After reviewing this information and conducting an interactive accommodation conference with the employee, the company concluded it had no work within the employee’s restrictions and terminated her employment, which prompted the ADA and FMLA claims.

Seneczko argued that, in light of the plaintiff’s permanent restrictions from her treating physician and the opinion of her own vocational experts, she was not a “qualified individual” protected under the ADA or entitled to leave under the FMLA, because she was not able to perform the essential functions of her job, with or without accommodation. He also argued that the representations she made in order to secure worker’s compensation and Social Security Disability benefits judicially estopped her from taking a contrary position in order to prevail in her ADA and FMLA claims. The court agreed and dismissed her case, finding:

Peters cannot have it both ways – she cannot assert an inability to do anything repetitive with her hands in the hopes of obtaining disability or worker’s compensation benefits, while at the same time present herself as able to perform the essential functions of her job . . . which includes repetitive use of the hands, in order to secure employment.

It reached a similar conclusion with respect to her FMLA claim:

If Peters now asserts that her medical condition was either not permanent or that the restriction regarding repetitive use of her hands was incorrect, that defies her assertions in her Social Security disability application, her worker’s compensation case, and her testimony in this case. While [the company] had been granting Peters intermittent FMLA leave for years, once it learned through her doctor’s restrictions that she could no longer perform the essential functions of the job . . . [it] had no duty under the FMLA to return Peters to her position.

Simply stated, you cannot have it both ways.

Oliver Wendell Holmes once said, “Do not be bullied out of your common sense by the specialist . . . ” The same can be said when dealing with issues under the ADA, FMLA and worker’s compensation. Sometimes, you just have to take people at their word – and that of their own experts.

If you have questions about the ADA, FMLA, duty to accommodate and/or worker’s compensation – and how to deal with all three of, feel free to contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

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