| |
|
Lawyer to Lawyer Newsletter
|
April 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:
 Finally - A New Federal Law is On the Way that Should Actually Help Employers!
On April 27th the House of Representatives overwhelmingly passed the "Defend Trades Secrets Act" (DTSA), paving the way for a federal statute employers can use to bring civil lawsuits for theft of their trade secrets. Currently, employers' recourse against employees and others for misappropriating company trade secrets, as opposed to patent and copyright infringement, for example, is through state laws. While many state laws protecting trade secrets are based on a uniform template that makes them similar, differences in these laws still occur. Beyond the challenges for employers trying to protect their trade secrets in an interstate and global economy through a patchwork of state laws, access to federal courts for these claims is limited. Therefore, perhaps the greatest impact of the DTSA will be the uniformity of a federal law and access to federal courts capable of transcending state lines in litigation over the theft of proprietary company information that qualifies as a protectable "trade secret," as well as a more aggressive enforcement scheme.
|
|
|
|
|
DOL Publishes New Employer's Guide to the FMLA
This week, on April 25th the DOL published The Employer's Guide to the Family and Medical Leave Act (pdf). This guide was "designed to provide essential information about the FMLA, including information about employers' obligations under the law and the options available to employers in administering leave under the FMLA." This is welcome guidance, as administration of the FMLA has given employers headaches since its enactment in 1993. The publication of this guide follows the 2012 publication of a guide by the DOL for employees to assist individuals in pursuing their rights under the FMLA.
This new guide for employers follows along the chronological path of a typical FMLA request and leave process, and answers some common questions along the way. It also contains graphics and charts, and links to the DOL's more comprehensive FMLA regulations and forms. This guide is an improvement over the even more voluminous regulations implementing the FMLA; however, it still is over 70 pages and does not answer all the questions that employers are bound to encounter administering this complicated law.
|
|
Recent 8th Circuit Decision Affirms that Obesity, on its Own, Is Not a Disability
Most human resources professionals and employment lawyers recognize that an employee or applicant that is overweight to the point of being obese, may well be considered "disabled" under the Americans with Disabilities Act (ADA). If disabled, it follows that such individuals are entitled to reasonable accommodations as may be needed to perform the essential functions of the job. But according to a very recent decision from the U.S. Court of Appeals for the 8th
Circuit (which covers Minnesota, Iowa and the Dakotas, among other states) the fact that an individual is obese, even morbidly obese, does not necessarily mean that he or she is "disabled" within the meaning of the ADA. In
Morriss v. BNSF Railway Co
. (April 5, 2016), the court held that in order to qualify as a "disability,"
obesity must result from an underlying physiological disorder or condition
. As the court put it,
being overweight - "no matter how far outside [the normal] range" - does not, standing alone, meet the definition of a physical "impairment."
Addressing the Equal Employment Opportunity Commission's (EEOC) position in its "friend of the court" brief,
the court rejected the conclusion that morbid obesity constituted a disability regardless of the cause
. Instead, according to this new decision obesity of any level, whether termed "severe," "morbid," or "class III" obesity, is not a disability absent some underlying physiological disorder or condition. Qualifying examples of physiological disorders or conditions, would include...
|
|
|
Challenges to the DOL's Persuader Rule
The Department of Labor finalized changes to its controversial "persuader" rule, requiring employers and their labor consultants, including attorneys, to report any arrangement to directly or indirectly persuade employees regarding unionization. Many attorneys object that this requirement would violate attorney-client privilege, and the rule is already facing multiple challenges in courts across the country, including at least one in Minnesota.
|
|
CEO Sentenced to 1 Year in Prison and $250,000 Fine for Safety Violations in Massey Mine Blast
Massey Energy's CEO, Don Blankenship, received the maximum sentence for engaging in a "dangerous conspiracy" to "willfully violate mandatory mine health and safety standards" before a deadly mine explosion that killed 29 individuals. Blankenship was accused of placing profits before safety, and putting pressure on workers to look past hazards. Blankenship was not charged with directly causing the explosion, and was cleared of the more serious charges of submitting false statements to the U.S. Securities and Exchange Commission, or he would have faced a significantly longer prison sentence.
|
Things You Need to Know...
About All Things HR:
A Day of Lists
Join our employment attorneys for an interesting and informative "Day of Lists," an entire day devoted to the most critical aspects of the decisions and issues you face on a daily basis -- and their legal consequences, all in a unique and fun "list" format.
Cost: $175 - First person; $125 - Additional person (same company)
Location: Country Springs Hotel & Conference Center Pewaukee, WI
|
|
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.
Sincerely,
James B. Sherman, Esq.
Wessels Sherman
|
Contact James Sherman at:
(952) 746-1700
|
|
|
|
|
| |
|
