Employee Bad Attitudes Protected By NLRB

The Seventh Circuit Court of Appeals recently upheld a National Labor Relations Board decision (Staffing Network Holdings, LLC vs. National Labor Relations Board, 15-1354 & 15-1582, 7th Circuit, March 2016) holding an Employer, Staffing Network Holdings, in violation of the National Labor Relations Act by twice threatening Non-Union Employees with discharge for engaging in alleged protected and concerted activity and for actually discharging Employee Griselda Barrera for protected and concerted activity.

In this Case, a Supervisor by the name of Andy Vega told two (2) of the Employees who were working on the Production Line that they had to work faster. One (1) of the Employees (Juan Gutierrez) advised Vega that he would not work faster for his hourly pay of $8.25 an hour and was then told by Vega to go home if he was unable to keep up with the work and because of his attitude. When Gutierrez was sent home by Vega, the other Employees on the line briefly stopped working to confront Vega about his decision. Vega, obviously put in a difficult situation, advised the Employees that they should return to work immediately or he would also send them home. Griselda Barrera refused and asked if she was being threatened and said she could send a letter to the Department of Human Rights about her mistreatment. Vega told another Supervisor to send Barrera home and she refused, insisting that she had done nothing wrong and continued to attempt to get the other Employees worked up because of the injustice. Barrera later left and when she (Barrera) inquired as to her returning the next day, was told she had to talk with Vega about what happened and that she should not return to work.

Barrera filed an Unfair Labor Practice Charge with the National Labor Relations Board alleging that she had been unlawfully discharged for exercising her “Section 7 Rights”. Staffing Network, through Vega, argued that Barrera was not sent home because she was complaining about the alleged injustice, but because she had become abusive and insubordinate and had caused him embarrassment in front of the other Employees. These arguments were rejected by both the Administrative Law Judge and the NLRB and were supported by the Seventh Circuit Court of Appeals, which stated as follows:

It is well settled that a brief on-the-job-work-stoppage is a form of economic pressure entitled to protection under the National Labor Relations Act (Molon Motor & Coil Corp. v. N.L.R.B., 965 F.2d 523, 525 (7th Cir. 1992)). Staffing Network terminated Barrera because of her concerted and protected activity in protesting Vega’s treatment of Juan Gutierrez in relation to the terms and conditions of his employment and to that of the other pickers. Therefore, substantial evidence exists to support the NLRB’s finding that the Company violated the Act when it discharged Barrera for engaging in protected and concerted activity.

Obviously, Supervisor Vega was thrust into a situation that escalated very quickly and, in all probability, he may have been totally unprepared to deal with this highly volatile situation. He reacted emotionally rather than taking a step back to consult with other Management Personnel on how best to deal with a difficult situation. It is strongly suggested by the author that while insubordinate conduct and a refusal to work may be grounds for immediate termination, the “facts or circumstances of the situation” must be considered and Supervisors and Management Personnel advised that when confronted by a hostile situation, it might be best to take a step back and consult with other members of Management as how best to proceed. There is no need to “terminate someone on the spot”, it can always be done the next day when cooler heads prevail.

Questions? Contact Walter at (312) 629-9300 or waliszka@wesselssherman.com

NLRB-At it Again!

September 2015

Since the “packing of the NLRB” by President Obama, long established precedents of the National Labor Relations Board have been falling like flies as President Obama’s union protection agenda runs full force (joint employer standards; representation issues; etc.). There is no doubt in the author’s mind that President Obama deserves his union card!!

In a recent decision issued by the NLRB (June 26, 2015) in the case of American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers-West, 32 NLRB No. 139 (32-CA-063475) the Board has rent asunder a thirty-eight (38) year precedent that established a bright line rule that allowed employers not to provide to a union copies of witness statements taken by an employer during an investigation regarding employee workplace misconduct. The Democratic NLRB has seen fit to invalidate this bright line standard established in Anheuser-Busch Inc., 237 NLRB 982 (1978) and replace it with a “balancing test” that would balance the needs of the union for the alleged requested information (actual employee statements) against any “legitimate and substantial confidentiality interests” established by the involved employer. Based on the overly “pro union bent” of the NLRB, how many cases will find “legitimate and substantial confidentiality interest” in favor of an Employer? In the opinion of the author, not very many!!

It is indeed interesting to note that this decision in June 2015 is, in reality, the second decision of the NLRB in this case. In point of fact, the exact same decision was made by the “Obama packed NLRB” in December of 2012 that was later overturned by the United States Supreme Court in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) which held that this decision, as well as approximately three hundred (300) other NLRB decisions, were illegal predicated on the fact that certain Obama appointments to the NLRB were unconstitutional. Unfortunately, in this case, the time from 2012 to 2015 has not been a sufficient time passage to allow the “Obama NLRB” to come to a better decision.

What this decision basically means is that it is going to be difficult, if not impossible, for an employer to investigate workplace misconduct and procure from its employees information and written statements detailing what they observed. The employer will not be able to promise “confidentiality of the statement” to any employee! Which employee, in his/her right mind, would present a statement identifying workplace misconduct by another employee if, in fact, that statement must be given to the union for their review? Again, the NLRB’s lack of business sense comes to the fore.

Simply stated, this decision goes a long way of making a thorough employer investigation of work place misconduct (think sexual harassment or intentional destruction of product) impossible!

Questions? Contact Walter J. Liszka, Managing Shareholder of the Chicago office of Wessels Sherman at waliszka@wesselssherman.com or (312) 629-9300.

Unions Still on the Prowl

February 2015

By: Walter J. Liszka, Esq.

While it has not been a topic for a great amount of discussion, unions won more representational elections in NLRB monitored elections in the first half of calendar 2014 when compared to the same period in 2013. Unions have won a little over eight (8%) percent more elections in the first half of calendar 2014 when compared to the same period for 2013 (465 wins in 2014 versus 428 wins in 2013) and have also improved their “win rate” at approximately three point seven (3.7%) percent (428 wins out of 653 total elections in the first half of 2013 versus 465 wins out of a total of 671 elections in the first half of 2014).

While the unions have “improved” their number of representational election wins and their win rates, they have not drastically increased the number of new members unions have added to “union polls” through these elections. In fact, in the first half of 2013, approximately 65,860 new workers were added to the union roles arising out of these elections, but in the first half of 2014 only 25,750 new workers were unionized or a rather substantial decrease in “new members (i.e. a decrease of over sixty (60%) percent). This small number of organized employees, in the opinion of the author, is directly related to the increase in the number of “micro unions” sought by unions (i.e. small numbers of employees contained within a larger unit of employees employed by the same employer at the same locations). It is obvious that micro units are much easier to organize because there are a fewer number of employees from whom the unions need authorization cards and the peer group pressure that is excreted within “micro units” seems to be greater. All is not lost for the employer!

Unions have also substantially lost a greater number of decertification elections (elections in which employees voted on whether to remove the union as their representative) in the first half of 2014 when compared to the same period in 2013. In the first half of 2013, unions lost fifty nine point six (59.6%) percent of the decertification elections while in the first half of 2014, unions lost seventy point one (70.1%) percent of the elections.

Employers who are concerned about unionization must realize that over the next few years, the National Labor Relations Board, heavily staffed in appointed positions by the extremely liberal Obama administration (read this as very liberal Democrats) has made it easier for unions to organize a workforce. Regardless of this fact, every employer who wishes to remain union-free must take action to protect its employment venue. Here are a few suggestions: 

1. Know who you want to be the supervisors and make absolutely certain that the supervisors know they are supervisors and meet the new board tests;
2. Have legal no solicitation, no distribution, no access rules posted and enforced;
3. Train your supervisors, not just lecture, on what you expect of them because they are the most important persons in winning a union election;
4. Have and publish a clear union-free statement establishing that in your day to day operations unions are unnecessary;
5. Clearly explain to employees your “union-free policy” and the use and meaning of union authorization cards;
6. Have a credible dispute resolution system in effect and make sure that it works – you might want to make sure that the “employee gossip time” is aware of successful employee wins; and
7. Have and pay competitive wages and benefits for your business!

While the demise of unions in the private sector has been talked about extensively (in calendar 2013, less than seven (7%) percent of the total private sector workforce was unionized), this does not mean that you, as an employer, are protected from unionization in the future. The wise employer prepares for the fight well prior to when union organizing is under way!  

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .

Obama is Labor's Winning Hand

April 2014
By: Walter J. Liszka, Esq.

Since the election of Barack Obama, employers who have maintained a union-free environment have had to deal with a number of bizarre new decisions and rules by agencies in the Obama administration that have been attempting to make union organizing easier for employees and much more difficult for employers to resist. All of us remember the failed attempt with the Employee Free Choice Act (EFCA) but, employers cannot rely on the fact that the failure to pass the EFCA will continue to provide positive benefits in 2014. Employers that fail to act and reinvent their union-free strategies to meet the game changing challenges on the horizon will face serious problems.
It is expected in 2014 that the Department of Labor will have reissued its new interpretations of the Labor Management Reporting and Disclosure Act (LMRDA) that will redefine the public reporting requirements for employers that use third-party consultants or attorneys to help them establish and implement union-free strategies or to combat organizing. This will change the lay of the land and will probably negatively impact what attorneys and/or consultants can do in providing guidance for employers.

In 2012, the National Labor Relations Board (NLRB) published a series of rule changes to force speedy representation elections and to restrict - in the opinion of the writer of this article, eliminate - the ability of employers to affect litigation of issues with regard to the appropriateness of a requested bargaining unit and voter eligibility. Many of us recall that these proposed rule changes were enjoined by a court in May 2012 but, that may be short lived. The Chairman of the NLRB, Mark Pearce, has recently signaled that he wants to reissue these rules and, with the pro-union majority on the current NLRB, this will probably be done quickly. These rules will change the "rules of the game" by shortening the time between the filing of a petition and an election and, in fact, may change the time between the filing of a petition in an election to only fourteen (14) calendar days. Currently, the NLRB's goal is to have an election within forty-two (42) calendar days of petition filing. Another series of these changes could eliminate the ability of employers to litigate the appropriateness of the bargaining unit as requested by union and voter eligibility in any hearing on the union petition. The employer would be unable to stop an election in a unit as small as a single classification within its operation and potentially could be limited in determining who is and who is not a supervisor and, therefore, would not know who could be required to participate on behalf of an employer in a campaign as a spokesperson or provide information to an employer with regard to voters' concerns and attitudes. This type of upheaval will make it almost impossible for an employer to get its message out to the voting group.

There are three current NLRB cases that can also have a great impact on future union organizing:

• Specialty Healthcare (357 NLRB No. 83 (2011)) rejected the NLRB's longstanding presumption in favor of wall-to-wall or large units by establishing that employee voting units, perhaps as small as a single job classification, would be found appropriate in the future. It is significant that this NLRB decision placed a very strenuous burden of proof on an employer to prove that a requested unit by the union was inappropriate. Going forward, the employer's burden would not just be "persuasion" but the employer would be required to establish by "overwhelming evidence" that the requested unit would be inappropriate if it included or excluded certain other employees. This may be a burden that is very difficult to achieve. One can only speculate as to how multiple individual units within a single workforce would impact an employer's ability to deal with such a situation - it could be a situation of constant bargaining on multiple contracts; loss of job flexibility with regard to cross training and movement among classifications and a host of other potential operational difficulties that would make it either impossible to run a day-to-day operation. It should be noted that since the decision in Specialty Healthcare, Regional Directors have directed the election in units of cosmetic and scent employees at Macy's and, for example, women's shoes at Bergdorf Goodman, certainly not the traditional "wall-to-wall" store units.
  
• Two cases, Oakwood Healthcare (348 NLRB No. 37 (2006)) and Croft Metals, Inc. (348 NLRB No. 38 (2006)), are now being applied vigorously to define who is and who is not a "supervisor." Under the National Labor Relations Act (NLRA), supervisors are not considered employees and therefore are not entitled to its protections. More importantly, supervisors are the front line communicators and, in the opinion of the writer, the best representatives of an employer in a union election scenario. If they are not able to be clearly identified, an employer has a vexing problem. Employers would be left uncertain as to whether a specific individual is a supervisor until after an election occurred. Actions taken with regard to that individual might be the basis of an Unfair Labor Practice Charge because the employer interfered with "an employee that it included in its supervisory strategy sessions regarding union activity." Perish the thought that an employer who determined an individual was a supervisor and told that person to take certain actions which the individual refused to do with regard to communicating the employer's position and the employer then fired that person. This "unidentified supervisor" is an untenable situation and places an employer in a "damned if you do and damned if you don't" dilemma with regard to how it treats individuals and uses them as advocates or sources of information.

While this article is not intended as an all is lost pictorial, it is intended to alert employers that the future may be changing with regard to an onslaught of union organizing and that every employer who wants to maintain their non-union status should take precautions to deal with that issue now rather than face these issues with the union organizer at the door.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .

Bye-Bye Franchisee

August 2014
By: Walter J. Liszka, Esq.

The first "nail in the coffin" in doing away with the franchisor/franchisee relationship and jeopardizing a vast number of small business operators in this country (estimated at a little over 85% in the restaurant industry), has been "nailed" by the National Labor Relations Board (NLRB) General Counsel. Robert F. Griffin, Jr., who was sworn in for a four (4) year term as General Counsel of the NLRB on November 4, 2013 and, as an aside, was a NLRB member from January 9, 2012 through August 2, 2013, has issued notifications to various NLRB Regional Offices that they are authorized to proceed with forty-three (43) complaints of Unfair Labor Practices against not only the franchisees of the locus of the dispute but, as well, against McDonald's, USA as a "joint employer." While there were a vast number of complaints filed against McDonald's franchisees and McDonald's since November 2012 (a total of 181 complaints), in his own authoritative way, General Counsel Griffin has authorized not only the issuance of the aforementioned forty-three (43) complaints but continuing investigation of sixty-four (64) other cases by his office to see if complaints should issue in these cases.

It is extremely interesting to note that the General Counsel's action runs parallel to the consideration by the NLRB in a separate and distinct matter (Browning-Ferris) as to whether or not the current standard used by the NLRB (currently legally separate and distinct business entities that in unison exert a significant and direct degree of control over employees and their essential "terms and conditions of employment" are considered as joint employers) should be changed. Under the approach being taken by the General Counsel, he wants to change that standard even though there is in place a very distinct and currently legally enforceable franchise agreement between McDonald's and its franchisees that requires the franchisees to comply with certain requirements dealing with food purchases and preparation of foods to protect the McDonald's brand, but cedes to the individual franchisees all control over hiring, firing, and determining the terms and conditions of employment of their employees.

While the directive of the General Counsel of the NLRB is not law and, in fact, does not have to be followed by the NLRB itself, it is indeed curious that it comes out in parallel to the current pending of the Browning-Ferris case. There may be other very serious issues for employers, be they a franchisor or franchisee, with regard to the actions of the NLRB General Counsel.

As everyone is well aware, there is afoot a ground swell of employee protests against McDonald's and various other fast food entities for an increase in the minimum wage. This effort is being strongly supported by the Service Employees' Union. Companion to this effort to increase the minimum wage through employee protests, the "all omnipotent President Obama" has seen fit to issue another of his numerous Executive Orders increasing the minimum wage for employees of all federal contractors. Are these merely concentric circles that are spinning on their own axis in the night with no connection? If any reader of this article believes that, the author has some real cheap land in Florida because it is under water!

There is no doubt in the mind of the author that should NLRB General Counsel Griffin's approach on joint employer status gain traction, it will quickly be adopted by other federal governmental agencies (EEOC and USDOL Wage and Hour Division) with regard to their investigations of "joint employers." Certainly the next few years of the Obama Administration and his "lap dog" appointees in all government agencies are going to be very interesting.

 
Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com .

NLRB Overreach?

October 2013
By: Walter J. Liszka, Esq.
The National Labor Relations Board, the primary government agency entrusted with the responsibility to "control and oversee" labor management relationships, is undergoing a 21st century makeover. With the substantial decrease in private sector unionization (set, by some surveys, at less than 7% of the nation's private sector workforce), the NLRB has seen fit to extend its regulatory authority to protect and promote the Section 7 rights of individuals arising under the Act into the social media venue.

Section 7 of the National Labor Relations Act gives to the employees the right to form, join, or assist labor organizations; and also guarantees employees the right to engage in "other concerted activities" for the purposes of collective bargaining or other mutual aid or protection. Even in the absence of a collective bargaining relationship and/or union-employer context, an individual employee who is complaining about "wages, hours or other terms and working conditions" on behalf of himself and other similarly situated employees cannot be disciplined or discharged for this type of conduct under Section 7 of the National Labor Relations Act. Over the last few years, there have been a number of cases dealing with social media (i.e. Facebook, etc.) where the Board has concluded that employee discipline outside the context of a collective bargaining agreement violates Section 7.

Inquiries by an employee asking co-workers on the individual's Facebook page for their reaction to another employee's complaints about work quality and staffing levels has been protected by NLRB action. A complaint by employees, posted on Facebook, about an employer's failure to withhold sufficient amounts of money to pay state income taxes, which resulted in employees receiving a demand for additional tax payments when filing their returns, was protected. In the latter part of January, 2012, the Board, while conducting an examination of employers' social media policies, underscored two (2) major points dealing with social media:

• An employer's policy should not be so sweeping and overbroad that it prevents employees from discussions of wages, working conditions, and terms of employment.
• An individual employee's comments are not protected if they are "mere gripes" not made in relationship to activities involving other employees (i.e. concerted activities).

What guidance, if any, does an employer have with regard to "employee social media issues"?

Based on a review of cases, the following seems to be true:

• The most bright line distinction in all of the cases is that the legality of disciplining an employee for social network conduct will hinge on the individual facts of each case.
• An employee's use of profanity with regard to company matters or personnel is not axiomatic proof exposing the individual to discipline. Profanity-based postings may find protection under the National Labor Relations Act especially when those postings have occurred outside the workplace and during non-work time. While every employer will take umbrage at such type of behavior, management must be aware that if they choose to discipline an individual for outside-the-workplace and non-work-time postings because of profanity, they may be creating a situation of future NLRB action.
• The Board will, more than likely, protect all communications that have some reference and basis in workplace terms and conditions of employment or pay due to the fact that it will affect more than one employee even if the post shows a certain level of disrespect to company management.
• Is the posting dealing with some regulated behavior which exposes an employer to potential legal liability? If the individual, in their social media posting, is complaining about workplace discrimination or harassment which can and will expose an employer to potential legal liability, this probably will not be protected. An employee has an obligation (?) to report wrongdoing to the employer and exposing "these wrongs" publicly and not reporting them to the employer will not be protected.
• In almost all of the cases, the Board has focused on the "when and where" of the social media posting. If the social media posting occurred while on company time and using company equipment, the greater the chance that the NLRB will find in the employer's favor. This, in and of itself, is somewhat confusing. The "when and where" of the activity should not control, but a number of cases, the NLRB spends a great deal of time analyzing the "when and where" (i.e. more discipline leeway if on company equipment and time).

No one knows where the NLRB's involvement in social media will finally go. As stated above, each individual case will expand or contract this net. Everyone knows that in the use of social media, less and less common sense is being used. Once the send button is hit, it cannot be taken back and more often than before, that "send" can cause employer/employee conflict.

 

Questions? Contact Walter J. Liszka, Manager Shareholder of Wessels Sherman's Chicago, IL office at (312) 629-9300 or waliszka@wesselssherman.com .

What Employers Face in Calendar Year 2014

January 2014
By: Walter J. Liszka, Esq.

At the beginning of every New Year, all of us have strong hopes of continuing successes and growth, both in our personal lives and business pursuits. For any employer, these "hopes of growth and success" can be related to potential legal issues that have been stirring in the previous year(s) and continue to mount challenges as 2014 opens its doors. Here are some of the potential challenges that will exist in 2014.

1. Continuing problem with misclassification of non-exempt employees as exempt. For many years, employers have concluded that "if I pay someone a salary," they are exempt from overtime pay. This is an absolutely fallacy and has caused innumerable employers to face legal challenges and pay substantial amounts of money. Whether an individual is exempt from the overtime requirements of Federal or State Laws relates to the actual duties that the employee performs and whether those duties qualify that individual for an exemption. Because misclassifications as non-exempt can expose employers to a minimum of two (2) years of back pay (three (3) years of back pay for willful violations) and, as well as double damages and attorneys' fees, this continues to be a problem for all employers. Take a step back and take a look at your "exempt employees" and consult with counsel as to whether or not the exemption is valid.
   
2. The ongoing dilemma of independent contractors. Because of the economic downturn, and to avoid (?) employer-related taxes assessed on the employer/employee relationship, many employers have delved into the area of "independent contractors." Whether an individual is an independent contractor or an employee is a very fact-specific determination and must meet stringent requirements of the Internal Revenue Code, the United States Department of Labor and, in the State of Illinois, the Illinois Department of Employment Security tests. Just because someone can say that the "independent contractor is free from direction and control" is not the end of the discussion. The employer must bear the burden of proving that the "alleged independent contractor" is truly not an employee. That proof may relate to the actual work performed by that individual and whether or not it is outside the employer's usual course of business; if it (the work) is performed outside of the employer's normal place of business, and whether or not the worker is engaged truly in an independent and established trade or profession.
   
   It also should not escape consideration that a recent bill introduced into the United States Senate - the "Payroll Fraud Prevention Act of 2013" if passed will amend the Fair Labor Standards Act and impose penalties on employers who intentionally misclassify workers as independent contractors. It is no longer such an easy decision to employ an "independent contractor."
   
3. FICA tax and its effect on severance pay in a workforce reduction. The question of whether severance payments that are made in a workforce reduction are considered as "normal wages" is an issue that the United States Supreme Court will soon decide. If, in fact, the Supreme Court decides that the severance payments are, in fact, wages, then an employer will be responsible for deducting Social Security and Medicare taxes on those wages paid as severance pay. If the Supreme Court should decide that these severance payments are exempt from FICA taxes, employers and employees may be entitled to refunds and the employer certainly may be responsible for reimbursing its former employees for those payments. Employers should consult with their accountants or tax counsel for further guidance on this issue and how to protect themselves and get refunds if, in fact, the Supreme Court decides that "severance pay" is not treated as wages.
   
4. Continuing legalization of marijuana for medical use. As of January 1, 2014, Illinois becomes the twentieth (20 ^th) state to legalize marijuana for medical use. With almost two-fifths of the states of the United States of America now allowing use of marijuana for medical purposes, employers are bedeviled by how this can and may impact day-to-day employment decisions. If an individual reports to work "under the influence of marijuana," can that individual be prohibited from working? If the individual employee states that, "I have to use my medical marijuana prescription during working hours," must the employer allow it? Must an employer consider accommodating an employee because of the use of medical marijuana and what is the interplay that will affect an employer with regard to the Americans with Disabilities Act versus, for example, the Illinois Human Rights Act? Just because a state has legalized marijuana for medical use, this does not mean that the possession and use of marijuana is not still a federal violation. There is no doubt that there will be a number of cases on this issue in the near term.
   
5. National Labor Relations Board (NLRB) and non-union workplaces. In the opinion of the writer, the NLRB has delved into the expansion of the impact of the National Labor Relations Act because of the substantial decrease in union activity over the last few years. Obviously, the NLRB must justify its existence and its continued budget application. The Board's actions over the last few years have impacted employers' requirements of confidentiality during workplace investigations and certainly have made a "big splash" in the arena of employers' actions as a result of their employee's social media posts. One can expect the NLRB to continue its trailblazing in the non-union workplace and draw more employers into coverage.
   
6. Affordable Care Act - ObamaCare. While the deadline for compliance for many of the Affordable Care Act employer initiatives were delayed until January 1, 2015, this is just a short-term escape for the potential impact of this law. Numbers of clients have indicated that there are substantial increases in medical costs on the horizon and, the writer has been advised by one client that they were told by their insurance carrier that they face a 90% increase in 2015. Hopefully wiser heads will prevail and do some massaging of this law (a recent survey indicates that less than 15% of the Americans surveyed are in favor of ObamaCare), but the politics in Washington are impossible to predict. Take the respite of 2014 and become aware of the potential impact and become aware of the potential obligations you face as of January 1, 2015.
   
7. Criminal background checks. All of us are well aware that there have been extensive actions by the Equal Employment Opportunity Commission (EEOC) with regard to limitations of criminal background checks because of their alleged discriminatory impact. Regardless of the number of commentaries questioning the EEOC's actions, the Agency continues to aggressively pursue this arena. It is suggested that the continued use of the past practice of asking job applicants generic questions about their criminal convictions or activities is just that, a thing of the past.
   
8. Tipping in the hospitality industry. Effective January 1, 2014, the concept of automatic gratuities attached to a customer bill, for example, parties of six (6) or more, will not be considered as tips but will be considered as "service charges wages." This will impact employers not only in recordkeeping and reporting requirements, but also potentially with compliance under the Fair Labor Standards Act and various state laws with regard to overtime rules - mandatory tips need to be included as part of the employee's regular rate of pay in order to properly calculate overtime rates. Employers in the hospitality industry should review their practices and gear up for the impact of this change.
   
9. Restrictive covenants. Over the last number of years, the writer has observed serious problems with regard to an employer's ability to enforce non-compete/non-solicitation restrictive covenants. Some of this has resulted from the fact that some employers had all employees, including the janitor, signing restrictive covenants and it became a silly concept to try to enforce. Just as importantly, many states, including the State of Illinois, have taken a jaundiced view of restrictive covenants and have limited more and more their expanse. In fact, in the summer of 2013, the Illinois Appellate Court First District imposed a rule that new or continued employment of a signer of restrictive covenant must last at least two (2) years after the employee signs the covenant for it to be enforceable. The rules of the game have been and are changing, and enforcing restrictive covenants is becoming even more difficult!
   
10. Social media - employer use. There are grave risks with an employer's viewing of social media of its employees - once you become aware of that individual's situation (religious beliefs; disabilities; other protected class memberships), you cannot deny your knowledge and it can and will come back to haunt you. Social media is an absolute and continuing element of our society and will continue to impact the workforce. Certainly the NLRB has taken a very aggressive posture in the area of social media and that will continue. As the law of social media continues to develop and, states continue to legislate in an effort to protect employees from their employer's intrusion into social media, this will be another area ripe for continuing disputes in litigation. 

Questions? Contact Managing Shareholder Walter J. Liszka of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com