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COMMON SENSE SOLUTIONS
FOR
YOUR CHANGING WORKPLACE
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MAJOR SUPREME COURT DECISION EXPECTED SOON REGARDING PUBLIC SECTOR EMPLOYEE RIGHT TO OPT OUT OF PAYING UNION DUES UNDER 1ST AMENDMENT (EVEN AS SOON AS TODAY)
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Janus v. American Federation of State, County and Municipal Employees (AFSCME) expected soon. The question presented
: Whether
Abood v. Detroit Board of Education
should be overruled and public-sector "agency shop" arrangements invalidated under the First Amendment. We will bring you the latest update as soon as this landmark decision is reached.
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POLITICAL DISCRIMINATION AND THE WORKPLACE
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Unless you were under a rock over the weekend, we are sure by now you have heard about what happened when Sarah Huckabee Sanders attempted to dine at Red Hen in Lexington, Virginia. This "begs" the question about political discrimination and political discrimination affiliation.
What occurred had our partners thinking about the legal protections that may (or may not) exist in the workplace environment concerning discrimination or, dare we say even political persecution.
Laws prohibiting political affiliation discrimination differ depending on location and whether employees are employed in the public or private sector. For example, Federal government employees are protected from such discrimination under the Civil Service Reform Act; In Michigan, the laws prohibit direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity; In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected; In Oregon, it's illegal to threaten loss of employment in order to influence the way someone votes.
But while a few of these laws do exist, these laws were not mainstream and were not considered the "hot topic" in employment and labor law. However, it may become the next "flavor of the day" for commentators, legislators, lawyers and employers.
W
e expect that there will be some questions and concerns from our Clients on this sensitive and divisive issue as we head into the midterm elections. Please feel free to reach out to any PSB Attorney to discuss this matter.
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REMEMBER: ILLINOIS NON-COMPETES REQUIRE PROTECTIBLE BUSINESS INTERESTS
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A recent case in federal court in the Northern District of Illinois, dealing with Illinois law, is a reminder to employers that they must have a protectible business interest for a non-competition agreement to be upheld in Illinois. In MedEx Staffing v. Dumrauf, the employer sued its division manager who went to work for another staffing company. In denying enforcement of the restrictive covenant, the judge found that the employer failed to connect the non-competition clause to a legitimate business interest that needed to be protected. The former employee had argued that the non-competition language would have prohibited him from working as a janitor at another company, and the court essentially agreed with the argument.
Illinois employers are reminded that the judicial trend has been to severely scrutinize restrictive covenants containing non-competition clauses. This judicial trend stems from the legal theory that competition is generally good for society, that non-competes prevent employment, and that in order for a non-competition agreement to be enforceable, it must protect a legitimate business interest. Such interests have been found where there is a near permanent client relationship, or a protectible proprietary interest such as trade secrets, confidential client information, etc.
Remember, most judges in Cook County, and many in the state, frown on restrictive covenants. To have a chance at enforcement, the restrictive covenant must be narrowly tailored and not overbroad, in terms of temporal duration and geographic scope; it must protect legitimate and protectible business interests; and it must be supported by adequate consideration. Call any PSB attorney if you need assistance with your non-competes and restrictive covenants.
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Wisconsin has many unique and often vexing employment law provisions that differ from Federal law and the law of other states. Add to this the fact that some municipalities in the state also jump into the regulatory fray and things can get difficult for Employers to understand how to apply the provisions. This quiz will focus on some of the more important variants. Future issues will focus on states such as Illinois, Michigan, Oregon, Connecticut, Arizona, California and New York where our clients and friends face similar challenges.
TRUE OR FALSE
1. Wisconsin bars discrimination on the basis of a criminal conviction record that is not substantially related to the employment involved that the employee holds or is applying for.
2. Madison bars the consideration of any criminal conviction record in the hiring process if the record is over three years old.
3. Wisconsin has its own FMLA which contains liberal provisions allowing an employee to force substitution of all sorts of paid leave for all types of FMLA leave.
4. Wisconsin FMLA applies to out of state employers with only one employee in the state as long as they have at least fifty employees elsewhere.
5. Wisconsin courts do not "blue pencil" covenants not to compete.
6. It is a good idea to draft covenants not to compete applying Wisconsin law in a way that sets out the different covenants separately.
7. Wisconsin has its own Plant Closing Law with very different provisions and thresholds than the Federal WARN Act.
8. Wisconsin bars discrimination on the basis of sexual orientation.
9. Milwaukee has its own civil rights in employment ordinance that prohibits discrimination on many basis that are not covered by federal or Wisconsin law.
10.Madison has an ordinance that is similar to Milwaukee's noted above in #9.
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PSB CONSULTING IS HERE TO HELP!
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Small projects? Big projects? Transitional needs while you hire your next your Human Resources person? Or perhaps you are a smaller company that needs only a part time dedicated person to assist you in HR!
Contact PSB Consulting to see how we can help. We work on a project basis or as an extension of your team.
For more information:
or contact Lisa at lisa@psb-consulting.com
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|  PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues. And as litigators, who combined have over thousands of trials "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner.
For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at lab@psb-attorneys.com |
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