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November 2016 Archives

Independent Contractor Protection Laws

NEW LAWS SPRINGING UP: With the change in our national economy and workforce tilting more and more towards "self-employment" and independent contractor status, new laws are springing up, both state and federal, to respond. Some of these new laws intend to punish companies who "misclassify" employees by (incorrectly) calling them independent contractors.

ACA FAQ of the Month: IRS Extends Form 1095 Distribution Deadline Again

Stop me if you've heard this one - an ACA-related deadline has been extended. In IRS Notice 2016-70 (available at, released on November 18, 2016, the IRS once again extended the deadline by which large employers must distribute a Form 1095 to their full-time employees from January 31, 2017 to March 2, 2017. In brief, the ACA requires large employers to complete two forms: a Form 1094, which is filed with the IRS; and a Form 1095, which is distributed to full-time employees. Significantly, this extension applies only to the Form 1095 employee distribution requirement; it does not extend the Form 1094 IRS reporting requirement. In light of the new and improved deadlines, the 2017 reporting requirements for large employers are below:

Employers Receive an 11th Hour Reprieve on DOL Minimum Salary Rule - Federal Judge Blocks Overtime Rule From Going Into Effect as Planned, On December 1st.

A federal judge in Sherman, Texas has issued a preliminary injunction which operates nation-wide to bar the Department of Labor's minimum salary rule for certain white collar exemptions from going into effect. Employers have been bracing for drastic changes to their pay practices and exempt/non-exempt job classifications due to a DOL regulation finalized this summer and set to take effect December 1, 2016. This rule more than doubled the minimum salary required to claim certain exemptions from overtime pay. The court's decision to block the rule, issued on November 22nd, came not a moment too soon for thousands of employers facing tough decisions before the rule was to take effect next Thursday.

The Marijuana Plant Keeps Growing!

In two (2) Wessels Sherman Client Alerts (August, 2015 and December, 2015) I wrote articles about the expansion of Medical Marijuana usage and its authorization in then twenty-three (23) States (Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, as well as the District of Columbia) and also the fact that there were four (4) States that permitted the "recreational use" of Marijuana that also allowed Medical Marijuana (Alaska, Colorado, Oregon, and Washington). With the past Election of November 8, 2016, that list of States is rapidly expanding.

Five Key Questions Regarding IDES Follow-Up Audits

I am getting an increasing number of phone calls from very nervous people who have heard that the Illinois Department of Employment Security (IDES) is now auditing Illinois companies based solely on the fact that the company had a prior IDES audit involving alleged "misclassification of independent contractors" ("follow-up audits").

Barring a Miracle Court Injunction Next Week, the New D.O.L. Regulations on Exemptions from Overtime Pay Go Into Effect in Just Two Weeks - Thursday, December 1, 2016!

As of December 1st most employees whose annualized salaries are less than $47,476, will be entitled to overtime pay even though their job duties would otherwise qualify for an exemption as executive, administrative or professional. A federal court in Texas is expected to rule next Tuesday in a lawsuit brought by employer groups seeking to enjoin the DOL's new rule from going into effect on the 1st; however, based on previous rulings in similar suits employers can hardly count on a court ordered reprieve. Consequently, in the final days before sweeping changes are mandated by the DOL's deadline to more than double the minimum salary necessary to qualify for any of the so-called "white-collar" exemptions, employers are scrambling (and our phones are ringing). Because so many employers remain unprepared for the sweeping changes (and exposure to lawsuits and liability) coming just around the corner, this article will identify some common misunderstandings that are leaving thousands of employers exposed - see if any apply to you!

SAVE THE DATE: Friday, April 28th, 2017!!!

Each year, Wessels Sherman hosts a full-day seminar where attorneys from our offices in Chicago, IL; Minneapolis, MN; Milwaukee, WI; and Davenport, IA, come together in one of our locations, to present on many of the most important workplace issues faced by employers around the country. In 2017, the location will be here, in Minneapolis. Mark your calendars now to attend this one-of-a-kind event to hear from our highly experienced attorneys - and guest speakers - from across the Midwest, on cutting edge HR, labor and employment topics. Here are the basics:

Wessels Sherman is Pleased to Announce that Allison Wells has Joined our Firm as an Associate Attorney in our Minneapolis, MN Office.

Allison Wells comes to Wessels Sherman from a highly regarded Twin Cities immigration law firm, where she focused her practice on representing employers in all aspects of employment-based immigration matters. Her extensive experience includes helping employers throughout much of the country with a broad spectrum of workplace immigration needs, including: EB-1 multinational managers, PERM Labor Certification/I-140, L-1A/B, H-1B, O-1, TN, B-1, H-2, family based petitions, waivers, naturalization, and U Visa. She also works with employers on I-9 and other compliance audits.

Penn State Sandusky Saga Continues to Provide Painful Lessons for Employers on What Not to Do In Response to Workplace Scandals Such as Employees Engaging in Sexual Misconduct, Harassment, etc.

Already, Penn State University has paid a heavy price (millions of dollars and lost football scholarships, not to mention damage to its reputation) for allegedly sweeping under the rug scandalous conduct of convicted sex offender and former assistant football coach, Jerry Sandusky. However, while Penn State's football team appears to have weathered the storm, the university's problems are far from over. In October, a jury awarded former assistant coach, Mike McQueary, $7.3 million for Penn State's mishandling of his report that he had witnessed Sandusky molesting a young boy in a locker room shower. Worse yet, on November 30th a judge tacked on another $5 million for McQueary's whistleblower retaliation claims, separate from the already huge jury verdict. This case holds some poignant lessons for employers who may be faced with news of serious misconduct by any of their employees, whether it be sex harassment, unlawful discrimination, or criminal activity.

Government Business Costs

Over the last number of years, businesses have been hammered by various Government entities (Local, County, State, and Federal) with regard to establishing new policies or procedures that increase the cost of business operation. There is no doubt that the implementation of Obamacare, Tax Increases, increased Medicare/Medicaid contributions, and Executive Orders over the past four (4) or five (5) years have increased the cost to business operations. While some of those costs are fairly obvious, actions taken by the City of Chicago, the County of Cook, and the State of Illinois have also "increased the cost of business operation" and in the opinion of the author, are some of the reasons that businesses are leaving the State.

Dealing with Post-Election Conflict in the Workplace

As we all know, events occurring outside the workplace usually find their way into the workplace - but generally with little disruption or impact. It is therefore not surprising that the results of the recent election and the divisiveness that it has produced have spilled into the workplace - only this time with disruptive and serious consequences.

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