Publications for Employment Law
If you have someone work for you, then you, the employer, need to determine whether you have hired an “independent contractor” or an “employee.” “Classification” is the term employment lawyers use to sort out whether the worker is an employee or an independent contractor.
On June 6, 2018, the Michigan legislature voted to repeal Michigan’s prevailing wage law, which required union scale wages on public construction projects.
It is well established that the Michigan Worker's Disability Compensation Act (the "Act") provides that the recovery of benefits under the Act shall be the injured employee's exclusive remedy against an employer.
Public pension systems are increasingly underfunded. Data released in 2017 indicates that the median state funding ratio (the percentage of assets that a state has available for future payments to retirees) fell to 71.1 percent in 2016, down from 74.5 percent in 2015.
With summer right around the corner, many Michigan employers are staffing up with interns to help out with the workloads, and also as part of recruiting programs.
The United States Supreme Court gave employers a big win this week by ruling, in a 5-4 vote, that employers can enforce agreements that require employees to arbitrate disputes individually and waive the right to pursue such claims in collective or class actions.
By declining to hear 11 closely watched labor cases, the Michigan Supreme Court has made it clear that public employees such as teachers throughout the state can quit their union any time of the year — putting more emphasis on what Michigan’s Right-to-Work law means for public sector employees.
Since 2008, when the Michigan Medical Marihuana Act (the “MMMA”) went into effect, employers in Michigan have been presented with new and nuanced issues related to how the new marijuana law would impact employment-related decisions.
Many people spend more time working at their jobs than they do engaging in any other activity during waking hours. It’s inevitable, therefore, that workers will get hurt on the job.
Sexual harassment is at the top of minds in workplaces across the country. It is up to employers to maintain a safe and secure workplace. This includes stopping sexual harassment from occurring in the first place and taking swift action to mitigate its consequences when it does.
While most businesses and business owners have developed a healthy fear of IRS tax audits, the U.S. Department of Labor's (DOL) authority to audit 401(k) plans has not drawn the same attention. For the sake of your small business, and your personal finances, this lack of awareness of the DOL's 401(k) money grab must change immediately!
In November 2016, I co-authored an article which discussed technologies available to employers for monitoring employee conduct, as well as some legal limitations on doing so. On the flip-side of that issue, employees may want to use technology, such as audio and video recorders on their cell phones, to record fellow employees, supervisors and events in the workplace.
Claims under the Whistleblowers Protection Act have become increasingly common. This may be because people can make the claim without exhibiting any of the characteristics at issue in other employment statutes: age is irrelevant; a showing of a disability is not necessary; nor are a person's race, sex, gender or religious beliefs relevant.
The Persons With Disabilities Civil Rights Act protects against disability discrimination in the workplace. The Act prohibits, among other things, an employer from discriminating in hiring, recruiting, promoting, discharging, or unfairly impacting the terms, conditions, or privileges of employment on the basis of a person's disability.
In the not too distant past, employers and employees had a clearer idea of what was, and was not, part of the workplace. In the past two decades, both employers and employees have blurred that distinction through changing technologies and work habits. At the same time, technological leaps have made it increasingly cheap and easy for employers to electronically monitor employee conduct. Employers must consider both the benefits and risks of electronic monitoring, and respect the legal limits on such monitoring.
The list of acronyms in the law is long. For employers, some acronyms are more important than others. And in the context of employment litigation, some are crucial. In this and our next two newsletters, we discuss three state statutes that create the potential for expensive lawsuits against employers: The Elliott-Larsen Civil Rights Act; the Persons With Disabilities Civil Rights Act; and the Whistleblower Protection Act. These statutes are identified by the acronyms ELCRA, PDCRA, and WPA.
Townships have a state constitutional right to "reasonable control" over roads. Townships also have the statutory right to adopt truck route ordinances. What happens if one township’s truck route ordinance effectively pushes commercial traffic into a neighboring township?
Changes in Technology and the Law Require Some Employers to Revise Internet and Social Media Policies.
A selection of new cases, legislation, and regulations from the last quarter which may affect Michigan's road commissions both as governmental entities and as employers.
The Michigan Supreme Court issued an opinion which will make it more difficult for employers to defeat whistleblower claims before trial. Debano-Griffin v Lake County and Lake County Board of Commissioners.
The United States Supreme Court is poised to make a decision that may affect how the federal courts treat Michigan employers sued for violations of Title VII, the federal law that prohibits race and gender discrimination and harassment.
In today’s economy, businesses often find it necessary to adjust the labor force within a relatively short period of time to remain competitive. In Michigan, this can be accomplished because the law presumes that all employment relationships are at-will.
Governor Snyder signed House Bill 4003 and Senate Bill 116, making Michigan the 24th state to enact "freedom-to-work"/ “right-to-work” laws. House Bill 4003 applies to the public sector and Senate Bill 116 applies to the private sector.
Every employer should understand and appreciate the value of having a handbook that is tailored to its operations, as well as having policies that reflect their current circumstances, and current law.
No two employers are exactly the same; neither are two employee handbooks. Every employer should understand and appreciate the value of having a handbook that is tailored to their business, as well as policies that reflect their current circumstances, as well as current law.
You might save on your employment taxes if your business is taxed as an "S Corporation."
Noncompetition agreements typically prohibit an employee or seller of a business to own or work for a competitor of the protected party, and often are of substantial value. However, a Michigan court will only enforce these agreements if they comply with the following four requirements.
On May 14, 2012, a federal district court ruled that the NLRB failed to assemble a quorum for its final vote on changes in the board's representation case rules, so the changes that went into effect April 30 are invalid and unenforceable.
The appellate court rejected the NLRB’s argument that the rule should take effect during the pendency of the court’s review, noting the NLRB had previously postponed the effective date of the rule because of pending litigation.
Last fall's Department of Labor (DOL) publication of a Notice of Proposed Rulemaking affecting child labor regulations in agriculture grabbed nearly everyone's attention in the agriculture sector. On February 1, 2012, the DOL reacted to the public response by announcing that the DOL will re-propose the portion of its regulation interpreting the "parental exemption" in summer 2012.
The Michigan legislature was active in 2011, passing or amending several laws that will impact public sector labor relations.
The last few years have witnessed significant increases in workforce audits and raids by U.S. Immigration and Customs Enforcement ("ICE") at all levels. Therefore, while proper I-9 compliance has always been important, it has never been more essential.
Documenting employee discipline is as important from a litigation defense perspective, as is counseling the employee in the first place to try to correct or improve job performance.
In response to political controversy surrounding the proposed new rules, a bill has been introduced in Congress (H.R. 3094) that would set minimum time periods for NLRB representation hearings and a 35-day minimum interval before balloting that are inconsistent with the board’s rulemaking proposal.
The Internal Revenue Service (IRS) and the Department of Labor (DOL) recently signed a memorandum of understanding, agreeing that they will share information and coordinate law enforcement to end the practice of misclassifying employees as independent contractors.
What do you do when an employee says he needs leave to care for his "significant other’s kids?"
An I-9 audit can be triggered for a number of reasons, including random samples and reporting by disgruntled employees. Every employer should have a formal internal I-9 Compliance Policy detailing the employer’s exact policies and procedures.
The Michigan Court of Appeals recently came through for employers, confirming that accessing inappropriate websites is misconduct that makes a former employee ineligible for unemployment insurance benefits.
Melissa authored the chapter "Components of Effective Employment Agreements" in Negotiating and Drafting Employment Agreements published by Thomson Reuters.
In the last few years, immigration reforms and increased enforcement have been the topics of extensive debate.
Blogging has become a tool for companies that are marketing, as well as for employees who are bent on revenge.
The Genetic Information Nondiscrimination Act of 2008 (GINA) took effect for employers on Nov. 21, 2009.
The DOL recently issued guidance that extends the grace period for amending non-grandfathered group health plans to comply with certain provisions of the new internal claims and appeals procedures.
As employers work to evaluate the impact of the Patient Protection and Affordable Care Act on their workers, insurance needs and balance sheet, many are wondering if and when the PPACA will apply to them.
GINA prohibits the use of genetic information in making employment decisions, restricts employers from asking for, requiring, or buying genetic information, and strictly limits the disclosure of genetic information.
Answer to an intriguing question that involves the intersection of employer rights and medical marijuana patient rights.
The WPA makes it illegal for an employer to discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee reports or is about to report a violation or a suspected violation of a law or regulation to a public body.
In late December, the EEOC issued a news release confirming that it has filed a nationwide suit against Kaplan Higher Education Corporation.
Staub v Proctor Hospital reminds us that job protections for military personnel are not limited to leave issues or re-employment rights under the Uniformed Services Employment and Reemployment Rights Act of 1994.
The U.S. Court of Appeals for the Sixth Circuit found that a municipal employer did not violate its employees’ legal rights by requiring workers returning from sick leave or restricted duty to submit a doctor’s note disclosing the "nature of the illness" to their immediate supervisors.
A federal judge ruled on February 11, 2011, that the Michigan Medical Marijuana Act does not preclude private employers from terminating employees for use of the drug.
Many municipalities employ drivers to perform safety-sensitive functions. What if one of these drivers arrives at work and appears to be under the influence of alcohol or a controlled substance?
The recently passed Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 ("2010 Tax Relief Act") reduced the employee-share of the Old-Age, Survivors, and Disability Insurance Program ("OASDI") portion of social security taxes from 6.2% to 4.2% of wages earned in 2011 up to the taxable wage base of $106,800.
The Regulations Under the Genetic Information Nondiscrimination Act of 2008 (GINA) became effective January 10, 2011 for private employers (and certain other entities) with 15 or more employees.
Three separate bills introduced in the Michigan House of Representatives propose changes to Michigan’s Statewide Smoking Ban that became effective May 1, 2010.
Social media is proliferating in the workplace. Facebook, My Space, Linked In, and Twitter have become commonplace on employees’ cell phones and computers. Blogging has become a tool for marketing, as well as for revenge.
Due to several recent changes in employment law, we highly recommend that all employers update their employee handbooks as soon as possible.
The Final Regulations of Title II of the Genetic Information Nondiscrimination Act (GINA) were issued on November 9, 2010 and become effective 60 days later on January 10, 2011.
Since the issuance of our Fall 2010 Employment, Labor & Benefits Quarterly, the IRS, on October 12, 2011, announced that it will postpone until 2012 the new reporting requirement that employers report the cost of coverage under an employer-sponsored group health plan.
The Uniformed Services Employment and Reemployment Rights Act of 1994 applies to all public and private employers in the United States, regardless of size.
The U.S.’s “Greatest” Utility Business Visa, Typically Oversubscribed and the Subject of Scarcity, Remains Available
For employers interested in hiring a foreign worker for a "specialty occupation", an H-1B Employment Visa is an option with a number of very attractive features:
The Sixth Circuit Court of Appeals, the federal appeals court that governs Michigan, recently addressed the ability to transfer a pregnant employee to a light duty position without the transfer constituting an adverse employment action.
The USERRA applies to all public and private employers in the United States. So it applies to counties, cities, townships, and villages.
PPACA provides that certain group health plans and health insurance coverage in existence on March 23, 2010 are subject to only certain provisions of the PPACA.
Public employee unions have existed in Michigan since the 1930s, but beginning in 1947, were prohibited from striking upon passage of the Hutchinson Act, which imposed serious penalties on strikers.
Michigan’s smoking ban became effective on May 1, 2010...this new law will impact municipalities directly.
A very small section of the Patient Protection and Affordable Care Act (PPACA) makes some major changes in Form W-2 reporting which will impact employers in the near future.
On April 26, 2010, our Sixth Circuit issued a decision in the case of Alonso v Huron Valley Ambulance, Incorporated.
The recently enacted healthcare reform act signed into law by President Obama on March 23 amends the Fair Labor Standards Act to require employers to provide "reasonable" breaks for nursing mothers to express milk for their infants for one year from the child’s birth.
Do you need a written Handbook policy about GINA? How does GINA affect your wellness program?
The Patient Protection and Affordable Care Act as amended ("PPACA") made several changes to cafeteria plans. Some of the most significant changes are summarized below.
If you were wondering whether the COBRA subsidy obligation expired on March 31, 2010, Congress has rather belatedly decided that it hasn't.
Effective May 1, 2010, smoking will be banned in all public places, including places of employment.
The recently enacted Hiring Incentives to Restore Employment (HIRE) Act may benefit your business with tax savings.
Federal law requires that participant contributions to a 401(k) plan be promptly deposited into a qualified trust that is established to hold qualified plan assets.
On February 17, 2010, most of the Health Information Technology for Economic and Clinical Health Act ("HITECH") became binding on the health care industry.
On January 29, 2010, the Department of Labor, the Department of the Treasury, and the Department of Health and Human Services jointly issued interim final regulations for the Mental Health Parity and Addiction Equity Act ("MHPAEA").
Effective May 1, 2010, smoking will be banned in all public places, including places of employment.
For the first time in Michigan, the Court addressed whether e-mails sent by public employees on the public body’s e-mail systems were automatically considered "public records" under the FOIA.
Employers who wish to review social media or employees’ personal web sites should have a policy in place informing employees that the company has a right to monitor employee use of the systems.
Social media platforms such as Facebook and Twitter can be great ways to promote a public body’s activities, inform about services offered, connect with the community and share information.
The most costly mistakes union employers make are all avoidable.
On January 21, 2010, the United States Supreme Court ruling in Citizens United v Federal Election Commission ("FEC") reinforced the free speech rights of corporations and labor unions to participate in the political process through independent communications expressly advocating the election or defeat of clearly identified candidates.
The Department of Defense Appropriations Act of 2010 (DOD) extends the COBRA subsidy previously created by the American Recovery and Reinvestment Act of 2009.
Effective for plan years beginning on or after October 9, 2009, Michelle’s Law protects certain dependent children whose eligibility for coverage under a group health plan is based on the child’s full-time student status.
For the second time in the last year, Congress has expanded the scope of the Family Medical Leave Act (FMLA).
Most Michigan employers pay a 6.2% Federal Unemployment Tax (FUTA) on the first $7,000 of each employee’s wages during a calendar year.
As the economy remains volatile and technology advances often faster than governing law or management can respond, employers should be aware of variables that affect the enforceability of employee non-compete agreements.
The Michigan Medical Marijuana Act was passed into law in the fall of 2008, with administrative rules issued April 4, 2009.
E-Verify is a free Internet-based system operated by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) that allows employers to verify the employment eligibility of their employees, regardless of citizenship.
Employees may be denied unemployment benefits between seasons if the Employer is designated a "seasonal employer" under the law.
The US Immigration and Customs Enforcement bureau of the Department of Homeland Security announced, on July 1, 2009, an initiative to step up audits of employers’ Employment Eligibility Verification Form I-9 and related employment records
The Pension Protection Act of 2006 (“PPA”) and the Heroes Earnings Assistance and Relief Tax Act of 2008 (“HEART Act”) made significant changes to the rules governing qualified retirement plans.
More than 250 new investigators are set to be hired in Michigan’s Department of Labor (DOL) Wage & Hour Division.
“Card Check” (the “Employee Free Choice Act”) would eliminate an employee’s private election of union representation and replace it with automatic unionization if more than 50% of the employee’s election cards support unionization.
The American Reinvestment and Recovery Act (stimulus legislation) has offered Michigan $138.9 million dollars to be used to expand unemployment compensation.
The Sixth Circuit’s decision in Barrett, Melton, Nickens v Whirlpool Corp, Case No. 08-5307 focused on hostile work environment and race discrimination claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981
It may come as a surprise that certain civil rights laws, like Michigan's Elliott-Larsen Civil Rights Act, apply to employers with only one (1) employee.
Employers are required to use a new Employment Eligibility Verification form (I-9 Form) to verify an employee's identity and authorization to work in the United States.
On January 30, 2009, President Barack Obama issued a series of Executive Orders that he contends should “level the playing field” for labor unions in their struggles with management.
The Department of Health and Human Services issued a final rule with the stated goal of ensuring that federally funded health care providers may safely decline to participate in certain health services because of their religious, moral, ethical, or other beliefs.
President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law on January 29, 2009.
Employees whose employment was involuntarily terminated on or after September 1, 2008, and who failed to elect COBRA following the termination, must be given a second chance to elect COBRA coverage.
At long last, the United States Department of Labor’s Wage & Hour Division has issued its final rule under the Family and Medical Leave Act.
At long last, the Department of Labor’s Wage & Hour Division has issued the Final Rule under the Family and Medical Leave Act.
The Federal Trade Commission (FTC) issued regulations, as part of the Fair and Accurate Credit Transactions Act of 2003...
In two cases decided this year, the United States Supreme Court determined that two federal statutes provide a basis for retaliation claims by employees against their employers, although the statutes themselves do not on their face prohibit retaliation.
Many employers routinely pay severance in exchange for a release of claims embodied within a separation agreement.
In a very significant March 31, 2008 opinion, a divided Sixth Circuit Court of Appeals panel in Thompson v North American Stainless, LP, expanded the class of persons protected from retaliation under Title VII.
On May 21, 2008 President Bush signed the Genetic Information Nondiscrimination Act (GINA), a law that prohibits discrimination by employers or insurers based on an individual’s genetic information.
On July 1, 2008, the last of the three minimum wage increases that began back in October 2006 will go into effect.
The Michigan Court of Appeals issued a published opinion on May 22, 2008, which held in a case of first impression that the "ministerial exception" exists in Michigan, and is a bar to inquiry into a religious institution’s motivation for a contested employment decision.
The Sixth Circuit recently decided that Title VII prohibits employers from taking retaliatory action against employees not directly involved in protected activity...