Murray Elected Chair of Mackinac Island Community Foundation

FOR IMMEDIATE RELEASE
DATE:  August 20, 2019
CONTACT:  John E. Cornwell (248) 901-4008

 

PETOSKEY, Mich. – August 20, 2019 – James J. Murray, managing partner of the Petoskey office of Plunkett Cooney, one of the Midwest’s oldest and largest law firms, was recently elected chair of the Mackinac Island Community Foundation Board of Trustees.

As a member of the board for the past four years, Murray was serving as the Foundation’s Treasurer at the time of his election. According to Murray, his service to the Mackinac Island Community Foundation is both an honor and a family affair.

“My family’s history on the Island dates back to 1839. I met and married my wife, Trish, on Mackinac Island, and my daughter will be married at St. Anne’s Catholic Church this October, where we were married 32 years ago,” said Murray. “I also have the honor of representing many Island families and businesses. I’m grateful for the opportunity to give something back to this amazing island community and to continue efforts to improve the quality of life of those who live, work and enjoy the Island I love so much.”

The Mackinac Island Community Foundation is a not-for-profit organization dedicated to improving and enriching the lives of residents and visitors of Mackinac Island. Murray noted that the foundation recently enjoyed its 25th anniversary. With the support of Island residents, visitors and many others who support its mission, the foundation has raised almost $14 million. The foundation promotes the general well-being of Island residents and visitors by working in community partnerships to generate endowed and unendowed funds and to stimulate community-wide initiatives such as the city’s recent endeavor to build additional housing to support the Island community.

Murray, who joined Plunkett Cooney in 1984, is a member of the firm’s Business and Governmental Law and Banking practice groups. His clients include closely-held businesses, real estate developers, hotels, municipalities and many other local businesses on the Island, including a ferry boat company. A 1985 graduate of the Detroit College of Law, he also has an active estate planning practice representing individuals and institutions in probate and estate litigation and administration and overall assistance with many businesses’ succession planning needs.

Established in 1913, Plunkett Cooney is a leading provider of business and litigation services to clients in the private and public sectors. The firm employs approximately 140 attorneys in eight Michigan cities, Chicago, Illinois; Columbus, Ohio; and Indianapolis, Indiana. Plunkett Cooney has achieved the highest rating (AV) awarded by Martindale-Hubbell, a leading, international directory of law firms. The firm was also recently selected by Crain’s Detroit Business as its inaugural Law Firm of the Year.

For more information about James J. Murray and his service on the Mackinac Island Community Foundation Board, contact the firm’s Director of Marketing and Business Development John Cornwell at (248) 901-4008; jcornwell@plunkettcooney.com.

DOL Opinion Letter: Rounding Employees’ Time

 

By: Claudia D. Orr

I remember hearing about an older partner bragging that when he was an associate, he knew all of the employment laws by heart, and the young associate saying that’s because there was only one law back then! Alright there were two. The National Labor Relations Act was passed in 1935 and it was followed by the Fair Labor Standards Act (FLSA) in 1938. But still, those were simpler times.

Now there are so many laws, and so many nuisances to those laws that it is difficult for an employer to get it right. But I had to chuckle when I read a recent Department of Labor (“DOL”) opinion letter that was advising on rounding principles for timeclocks.

This employer wrote the DOL asking if its payroll system rounded their employees’ time in a manner permitted under the FLSA. Stay with me here, because this will make you laugh too.

The employer advised that “employees generally clock in and out for each work period using a time clock or computer and the payroll software converts the amount of time an employee records working in each work period into a numerical figure in decimal form extended out to six decimal points (e.g., 7 hours and 30 minutes coverts to 7.500000 hours). The payroll software then totals the converted hours (extended to six decimal points) for each work period on each working day to calculate a numerical figure for daily hours, which is also extended out to six decimal points.

Next, the software rounds that number to two decimal points – if the third decimal is less than .005, the second decimal stays the same (e.g., 6.784999 hours worked rounds down to 6.78 hours); but if the third decimal is .005 or greater, the second decimal rounds up by 0.01 (e.g., 6.865000 hours worked in a day rounds up to 6.87 hours).” FLSA2019-9. Then the software calculates the wages by multiplying the hours worked by the wage rate. Seriously?

This is like the measurement of time used for a photo finish of the Kentucky Derby! Who enters their time by the one millionth of an hour? Do I have this right? [Clients, please don’t get any ideas…]. The employer wanted to know if rounding to the one hundredth of an hour is acceptable. Ok, so apparently the DOL decided to play along…

In relevant part, the DOL responded that “it is common and acceptable for employers to round time in determining an employee’s hours worked provided that doing so ‘will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.’ It has been our policy to accept rounding to the nearest five minutes, one-tenth of an hour [.1], one-quarter of an hour [.25], or one-half hour [.5] as long as the rounding averages out so that the employees are compensated for all the time they actually work.” Id (internal citations omitted). The DOL concluded that because the rounding practice was neutral on its face, the time keeping system was in compliance.

I am not sure if the employer was bragging about its system that tracked time to the one millionth of an hour or seriously confused. And, I can picture the employee at the DOL showing the employer’s letter to coworkers and laughing as he wrote the response.

But I will admit that I learned something. I did not know that an employer could round by a half hour. I have never seen that done. Keep in mind that Michigan requires rounding to the tenth of an hour because its wage and hour agency believes this is “more favorable” to employees. I think we can debate that. An employee would be pretty happy if he only worked 16 minutes and it was rounded up to a half hour. But I digress.

Bottom line, you can keep track of your employees’ work time by the millionth of an hour and round back to the hundredth of an hour and still comply with both the spirit and the intent of the original lawmakers when they passed the FLSA in 1938. Could their time clocks (or sundials) even track time like that back in the 1930s?

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

 Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. August 2019.

Register for the Eastern Michigan University Fall SHRM-CP and SHRM-SCP Prep Classes

By: Eastern Michigan University

 

Advance your Career with SHRM Certification

Earn your SHRM Certified Professional (SHRM-CP™) and SHRM Senior Certified Professional (SHRM-SCP™) certifications. Open doors for advancement and signal to employers your advanced professional development. Eastern Michigan University in co-sponsorship with DSHRM is offering SHRM Learning System® for Fall 2019 for $1,200, including your copy of the 2019 SHRM LS modules plus SHRM Certification online resources that include over 1000 practice questions, at the following locations:

  • Ann Arbor: Thursdays, 6–9 p.m., September 26-December 12
  • Livonia: Mondays, 6–9 p.m., September 23-December 9
  • Troy: Wednesdays, 6–9 p.m., September 25-December 11
  • Lansing: Tuesdays, 6-9pm, September 24-December 10

For  more information contact Dr. Fraya Wagner-Marsh, SHRM-SCP, GPHR, SPHR, at fwagnerm@emich.edu or 734-487-3240

Business/Strategic HR Recertification Courses

If you’re an HR professional with strategic-planning or policy-making responsibilities and need SHRM or HRCI recertification business/strategic credit hours, EMU is a preferred provider. EMU offers three five-week non-credit online courses during the year and they are pre-approved for the HRCI business/strategic credits or SHRM credits. The Fall course is described below. Business Law will be available in the Spring and Strategic Marketing next summer.

Financial Management for HR Professionals – October 1 – November 12 – Online

Learn to describe the fundamentals underlying the flow of financial information used for the preparation and interpretation of financial statements. Learn how to use financial information to make decisions about how assets are employed within organizations. $550 including materials.

For more information, contact Dr. Fraya Wagner-Marsh, SHRM-SCP, GPHR, SPHR at fwagnerm@emich.edu or Jaclyn Hasselzahl at jhassenz@emich.edu (734-487-9045). Register at http://www.emich.edu/extended/training/professional-development/hr_training/

Van Hyfte joins Plunkett Cooney’s Commercial Litigation Practice Group

Contact: John Cornwell at (248) 901-4008

  

BLOOMFIELD HILLS, Mich. – August 9, 2019 – Associate attorney Laura A. Van Hyfte recently joined Plunkett Cooney, one of the oldest and largest law firms in the Midwest, as the newest member of the firm’s Commercial Litigation Practice Group.

Van Hyfte has particular expertise in the areas of real property, contract disputes and resort-area land use and development. A member of the firm’s Bloomfield Hills office, Van Hyfte also has experience handling issues involving downtown development authorities, municipal planning and TIF funding.

Admitted to practice before the state and federal courts in Michigan and before the tribal courts of Little River Band of Ottawa Indians, Van Hyfte received both her law and undergraduate degrees from the University of Michigan.

Plunkett Cooney’s Commercial Litigation Practice Group represents a broad range of clients in litigation, arbitration and other forms of alternative dispute resolution concerning matters that arise while conducting business. Practice group members have extensive experience in matters involving contract disputes, business torts, real estate disputes, business ownership conflicts, bankruptcy, antitrust claims, corporate compliance issues, tax and finance issues, commercial collections, commercial landlord tenant, civil RICO, ERISA, intellectual property claims and many other areas.

Established in 1913, Plunkett Cooney is a leading provider of business and litigation services to clients in the private and public sectors. The firm employs approximately 140 attorneys in eight Michigan cities, Chicago, Illinois, Columbus, Ohio and Indianapolis, Indiana. Plunkett Cooney has achieved the highest rating (AV) awarded by Martindale-Hubbell, a leading, international directory of law firms. The firm was also recently selected by Crain’s Detroit Business as its inaugural Law Firm of the Year.

For more information about Laura Van Hyfte joining Plunkett Cooney, contact the firm’s Director of Marketing and Business Development John Cornwell at (248) 901-4008; jcornwell@plunkettcooney.com.

                       

     

Bourjaily joins Plunkett Cooney’s Trusts, Estates Group

Contact: John Cornwell, (248) 901-4008

 

BLOOMFIELD HILLS, Mich. – August 2, 2019 – Attorney Ryan P. Bourjaily is the newest member of the Trusts & Estates Practice Group of Plunkett Cooney – one of the oldest and largest law firms in the Midwest.

Bourjaily, who recently joined the firm as an associate in the firm’s Bloomfield Hills office, focuses his practice on litigating probate, trust and estate matters. He represents a range of clients in claims involving alleged breach of fiduciary duty, undue influence, lack of mental capacity, fiduciary removal and surcharge, as well as will/trust contests. He also advises clients regarding trust and estate administrations, protective proceedings and estate planning.

Selected as a “Rising Star” in estate and trust litigation by Michigan Super Lawyers magazine in 2019, Bourjaily received his law degree from Western Michigan University Cooley Law School in 2014. He is also a member of the Probate & Estate Planning Section of the State Bar of Michigan. Bourjaily received his undergraduate degree from Albion College in 2011.

The members of Plunkett Cooney’s Trusts & Estates Practice Group focus their practice exclusively in the area of estate planning. They have particular expertise in drafting trusts and wills, managing estates, administering trusts, preserving assets, addressing tax sensitive distribution of assets to beneficiaries, planning for retirement and planning for effective asset protection. They assist with the selection process for guardians, and they utilize sophisticated techniques for tax and succession planning to the benefit of their clients.

Established in 1913, Plunkett Cooney is a leading provider of business and litigation services to clients in the private and public sectors. The firm employs approximately 140 attorneys in eight Michigan cities, Chicago, Illinois, Columbus, Ohio and Indianapolis, Indiana. Plunkett Cooney has achieved the highest rating (AV) awarded by Martindale-Hubbell, a leading, international directory of law firms. The firm was also recently selected by Crain’s Detroit Business as its inaugural Law Firm of the Year.

 

For more information about Ryan Bourjaily joining Plunkett Cooney, contact the firm’s Director of Marketing and Business Development John Cornwell at (248) 901-4008; jcornwell@plunkettcooney.com.

Sixth Circuit Finds Potential USERRA Violations

 

By: Claudia D. Orr

The Uniformed Services Employment and Re-Employment Rights Act (“USERRA”) has been around since 1994, but there are very few court decisions under this law. So, I was pretty excited to see a published opinion by the US Court of Appeals for the Sixth Circuit and couldn’t wait to read what it had to say about the law. Nearly 25 years after it was enacted, I still have not had a single client ask me any questions about this law. Maybe this will just be knowledge for me to store away in my gray matter.

In Hickle v American Multi-Cinema, Inc (“AMC”), plaintiff Jared Hickle was fired from his job. AMC claims it was for unprofessional behavior and for impeding an investigation. Hickle, who also served in the Ohio Army National Guard, believed it was due to AMC’s anti-military animus, so he filed suit under USERRA and the comparable Ohio law.

The district court in Ohio granted AMC’s motion to dismiss, but the Sixth Circuit reinstated the case. Let’s take a closer look at what happened.

Hickle began his career at AMC in 2004 while he was still in high school. Two years later he received a promotion to Operations Coordinator at the theatre. In 2008, Hickle joined the National Guard. Before he left for training, Hickle interviewed with Tim Kalman (the General Manager) for a management position. When Hickle mentioned that he would need a six month leave of absence for military training, Kalman immediately ended the interview.

Hickle did not receive the promotion, but the person who did thanked him “for joining the military. I just got promoted.” Hickle received a promotion into management following his training and became Kitchen Manager in 2013. During that time, Hickle continued to serve, including a one year tour in Afghanistan.

Senior Manager Jacqueline Adler, Hickle’s immediate supervisor, made several comments over the years about how frustrating his time off was to her and maybe he should be moved to the front of the house where there are more managers to cover for him when he is gone “and it wouldn’t be such a [headache] to her.”

In June 2014, Hickle was supposed to close on the Thursday night before his military obligation on Friday. Closing occurred well after midnight which was when his orders could commence. Thus, Hickle informed Adler he could not close on Thursday. In response Adler commented that he needed to find another job as he no longer met the minimum qualifications at AMC. Hickle told Kalman about Adler’s comment and he said he would take care of it.

After returning from military duty, Hickle asked to meet with Kalman and Adler. During the meeting Hickle provided Kalman with a pamphlet that provided a detailed explanation of an employer’s obligations under USERRA.  Maybe this is the reason none of my clients ever call with questions. After the meeting, Adler continued to make comments suggesting that Hickle could (or should) be fired for taking time off for military service, including in February 2015 when Hickle asked for time off for military duty and she suggested that they needed to replace him.

In April 2015, AMC was expecting huge crowds for “Avengers weekend.” Hickle reminded Adler that he would be gone that weekend for military service. Adler told him that he would be fired if he missed work that weekend. When Hickle reminded her that terminating him for military service would be illegal, she said “that’s okay. We will find something else to terminate you on.” AMC would later argue that Adler was just joking. However, Hickle was fired in April, not long after she made that comment.

Hickle was fired because of the chicken finger incident. No kidding, I am not making this up. Apparently, one of the employees told Hickle that Quinton Branham had asked her to make extra food so he could take it home at the end of the shift. She refused but a “to go” box was found with 10 chicken fingers in it. This exceeded the amount an employee could take home for a shift meal.

Branham admitted that they were his but that they had been abandoned and would have been tossed out. Hickle told the employees that they could not take food home that night but would be permitted to eat their meal at the theater. Well, when finger licking good chicken is at stake, apparently tempers flare. Another employee began cursing at Hickle and acting disrespectful. Hickle wrote a statement concerning the incident and denied losing his temper or otherwise acting unprofessional in return.

The next day, an employee told Hickle that Adler was plotting to get rid of him. According to the employee, Adler was asking an employee to get into an argument with Hickle in front of other employees so they could then write statements against him. While Hickle gathered employee statements about Adler’s plot, AMC was investigating Hickle about the chicken finger incident.

Hickle’s actions were viewed as impeding the investigation. Hickle was fired by Keana Bradley, a “corporate adjudicator” after reviewing findings by AMC’s corporate compliance office which conducted the investigation with input from Kalman.

Under USERRA, employees who perform military service are protected from termination because of their military service. A plaintiff has to show by a preponderance (a tipping of the scales of justice) that his protected status was a “substantial or motivating factor in the adverse employment action.” Then the employer needs to show by a preponderance that it would have taken the same action without considering the military service and for a lawful reason.

The Sixth Circuit found that the district court was wrong when it held that Hickle had not offered any direct evidence of the violation. The decision maker was well aware of Adler’s persistent, discriminatory comments and threats and that Hickle was gathering evidence of Adler’s plot to frame him.

The court, relying on the Supreme Court’s decision in Staub v Proctor Hosp, 562 US 422 (2011), applied the “cat’s paw” theory: “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

Hickle presented evidence of Adler’s comments, including that she stated she would find another reason to fire him, and of her plotting to get him fired. Thus, a fact issue existed that needs to be resolved by a jury to determine whether Adler may have influenced the decision.

AMC tried to rely on a case where the investigator was not aware of the plaintiff’s complaints about military leave, and conducted a thorough investigation, terminating the employee solely for lawful reasons. However, the court found the instant case to be distinguishable, stating: “[t]his was not a case in which the decisionmaker was acting on a clean record and in ignorance of lurking discriminatory motives. The decisionmaker was fully aware of the facts suggesting that the ‘impeding the investigation’ charge was pretextual.”

AMC also argued that it had never denied Hickle’s request for time off, which the district court found to be persuasive evidence of a lack of anti-military animus. But the Sixth Circuit said this was not “determinative, as there could be numerous situations in which an employer would grant requests for military leave (albeit grudgingly) for years and nevertheless finally wrongfully terminate an employee for taking such leave.” While granting leave helps AMC’s case, it does not insulate it from liability.

So, in the end, a jury will decide whether AMC relied solely on the chicken finger incident in deciding to fire Hickle and whether it would have reached the same result absent the allegations that he had impeded AMC’s investigation.

I see two lessons from this case.  First, and while recognizing that staffing can become a legitimate concern, I would encourage employers to be supportive of employees who are willing to serve in the military. At the very least, don’t be as blatant in expressing disapproval as Adler was.

Second, if you want to avoid the cat’s paw theory, choose your decision maker carefully and keep that individual completely independent and far away from the opinions and taint of the supervisor who will be accused of discrimination. Such strategy decisions may best be made with the assistance of legal counsel or the cat’s paw may end up without chicken fingers to fall back on.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. August 2019.

Filing the EEO-1 Survey with Pay Data by Sept. 30

By:  Claudia D. Orr

 

Well, the time has come. Not only do many employers have to file an annual EEO-1, but now those employers must submit compensation data (known as “Component 2” data). Let’s first look at the EEO-1 so we are all on the same page.

The EEO-1 (or the Standard Form 100) must be filed by any employer having 100 or more employees (excluding “state and local governments, public primary and secondary school systems, institutions of higher education, American Indian or Alaska Native tribes and tax-exempt private membership clubs other than labor organizations”) and any employer having fewer than 100 employees if it is owned or affiliated with another company, or there is centralized control, ownership or management such that the entities constitute a single enterprise having 100 or more employees. Single enterprises include those that have “a central control of personnel policies and labor relations.” In addition, many federal contractors that have 50 or more employees must file an EEO-1 annually.

The EEO-1 survey for 2018 was required by May 31, 2019. This form asks about sex and races of employees in different job categories (executive/senior managers, first/mid-level officials and manager, professionals, technicians, sales workers, administrative support, craft workers, operatives, laborers and helpers and service workers). Click here for a sample form: https://www.eeoc.gov/employers/eeo1survey/upload/print-single.txt. There are different forms for single-establishment companies and multi-establishment companies.

The EEO-1 needs to be “certified” as accurate or the employer is in violation. It is interesting that if the person certifying the accuracy of the form willfully makes a false statement, they can be fined and imprisoned for up to five years. However, if an employer simply fails to file the form, and gets caught, the Equal Employment Opportunity Commission’s (“EEOC”) remedy is to petition a federal district court for an order.

The data for the survey is gathered during the “workforce snapshot period” which is a pay period selected by the employer between October 1 and December 31 of the reporting year. The employer only reports data on the EEO-1 for employees who were on the payroll during that snapshot period.

Now, in addition to providing the statistical information above, these same employers need to file Component 2 data by September 30, 2019.  The only exception is that while most federal contractors with 50 or more employees are required to file the EEO-1, federal contractors with fewer than 100 employees will not need to file the compensation data.

Employers are permitted to choose a different “snap shot” pay period for the Component 2 data if they want. The requested compensation data is obtained from the tax form W-2, Box 1. Thus, if an employee was hired at $100K annually, but only earned $50K according to Box 1 because he only worked six months, the employer would report the data in the compensation band that corresponds with $50K. If a corrected W-2 is issued, the employer can use the original or corrected Box 1 data. If the employee starts at one company but then transfers to a different company in the multi-establishment enterprise, the information is only reported for the company where the employee worked during the “snapshot” pay period.

There is also an “hours-worked” matrix for Component 2 data. Each cell in this matrix will correspond to a cell on the summary compensation matrix. For exempt employees, the employer should report accurate hours if time records are maintained. If not, the employer would use 40 hours a week for full time exempt employees and 20 hours for part-time exempt. If an exempt employee works 37.5 hours a week (common at many non-profits), the employer can use that number. “Hours worked” is time actually worked and does not include paid time off for vacation, holidays, etc.

On its website, the EEOC announces that the “web-based portal for the collection of pay and hours worked data for calendar years 2017 and 2018 is now OPEN. The URL for the portal is https://eeoccomp2.norc.org. EEO-1 filers should submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019…” The EEOC’s website has a lot of helpful information including a Frequently Asked Questions page: https://eeoccomp2.norc.org/Faq. There is also a link to a “suggestion box,” but please remember it’s not anonymous.

Critics are concerned about employers’ wage information being obtained by competitors or unions through the Freedom of Information Act (“FOIA”). But the EEOC claims there are exemptions under FOIA that “may” apply and protect the data from disclosure, but I wouldn’t count on it remaining confidential. I guess time will tell.

Merces Consulting Group and Michigan Manufacturer’s Association Conducting Time Off, Retirement and Fringe Benefit Survey

By: Merces Consulting Group

 

DATE:  July 31, 2019
CONTACT:  Linda Budd, 248-721-9561

 

Participants are sought for Time Off, Retirement and Fringe Benefit Survey that is currently being conducted, and your participation is welcomed.

All participants receive a free summary report, as well as a purchase discount for the full report. The survey covers topics such as vacation/paid time off and retirement programs, tuition assistance, employee wellness and other benefits.

If you would like a copy of the questionnaire or have any questions, please contact Linda Budd, Merces’ Survey Administrator, at 248-721-9561. The survey deadline is Friday, August 9th.

Adopt and Amend? Supreme Court May Decide Fate of Paid Medical Leave, Improved Workforce Opportunity Acts.

By:  Claudia D. Orr

 

On July 17, I listened to the oral arguments before the Michigan Supreme Court in In re Advisory Opinion on 2018 PA 368 & 369. It was riveting, but I walked away with only a sense of the direction that some of the justices may be leaning in the ruling.

Before we dive in, let’s review what has happened to bring the important issues of Michigan’s Paid Medical Leave and Improved Workforce Opportunity acts before the Supreme Court.

As you may recall, there were two citizen initiatives that were to appear on  the November 2018 ballot which, among other things, would have (1) provided 40 hours of paid sick time to employees who work for smaller employers (having fewer than 10 employees) and 72 hours of paid sick time to employees working for employers with 10 or more employees; and (2) increased the minimum wage rate to $10/hour with additional yearly increases, bringing the minimum wage rate to $12/hour by 2022 and phasing out the tip credit by 2024.

If both initiatives became law by vote of the citizens, the Michigan Legislature could only change them by a three-quarters vote of all members of both chambers of the Legislature, rather than a simple majority vote.

But the citizen initiatives were removed from the ballot when the Legislature adopted both laws.  If that was the end of the story, we would not now have issues to be decided by the Supreme Court. After the November election, the Legislature amended both laws and then Gov. Rick Snyder signed the amended versions into law during the lame duck session. That’s the rub. Can they adopt and then amend in the same session?

The amendments significantly watered down the benefits to employees, making both laws friendlier to employers.  For example, under the amended laws (which became effective March 29, 2019), paid sick time must only be provided by employers with 50 or more employees and then only 40 hours a year.  Similarly, the minimum wage rate was increased to $9.45/hour and it won’t reach $12/hour until 2030. In addition, the tip credit will stay in place.

Democrats in the Legislature asked the state’s new Attorney General Dana Nessel to opine on whether the so called “adopt and amend” process is constitutional under Article 2 § 9 of the Michigan Constitution, which begins by stating: “The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum.”

The Republicans made the same request of the Michigan Supreme Court, believing its conservative majority would provide a more pro-employer opinion. The Supreme Court agreed to hold oral arguments on the issue but did not commit to issuing an advisory opinion. It requested briefs from the attorney general’s office, arguing both for and against the constitutionality of the process that had been utilized by the Legislature and the new laws.

So, July 17 was the hearing which lasted approximately two hours. Therefore, much of what I am conveying now is being paraphrased. However, it does provide a glimpse into what happened.

Remember that the Supreme Court asked the attorney general’s office to brief and argue both sides of the issue. Assistant Attorney General Eric Rustuccia was first up to argue that the process and laws are constitutional. But, before making that argument, he first argued that the Supreme Court did not have the authority to issue an advisory opinion after a law has been given effect. It is clear that a request for such an advisory opinion must be made before the effective date of the law.

However, from the questions that were asked by the justices, it does not appear that the justices were at all convinced that the court had to issue its advisory opinion by any specific date. In fact, Justice Richard Bernstein pivoted from this issue to the substantive issues, asking whether the Legislature’s actions thwarted the will of the people?

The justices asked numerous questions, including whether amendments might further the will of the people while others might thwart it? And, setting aside the content of any specific amendment, couldn’t the process itself thwart the will of the people which reserved for themselves the right to ballot initiatives?

Next, attorney John Bursch argued for those in the Legislature who supported the constitutionality of the two new laws, indicating that the Legislature can amend any law at any time. That “how much of a thwart” should be permitted, a little or a lot, simply cannot be the test. Once the law was adopted by the Legislature, it is a law that can be amended at any time like any other law. He provided a hypothetical wherein the citizens pass a ballot initiative and the Legislature determines that there is not sufficient funding available. Shouldn’t the Legislature have the ability to change it?

The hypothetical was rejected by one of the justices who quickly asked whether anything like that occurred in this case? Justice Bernstein pointed out that the Legislature adopted the initiative as law. Isn’t the integrity of the Legislature, the belief of the people in their government, an issue that should be considered?  Bursch rejected that as the test, arguing that the only test is the text of the constitution and it contains no restriction on the Legislature’s ability to adopt and amend the law.

Next came arguments in opposition to the constitutionality of the process and the two new laws. Michigan Solicitor General Fadwa Hammoud, of the Attorney General’s Office, quoted the opening line from Art. 2 §9: “The people reserved for themselves the power…”  It is clear that the people did not intend to stand by as observers but were to be active participators in our government and Section 9 does not contemplate that the power of the people could be so easily thwarted. She argued that Section 9 was not intended to mean that the people could only propose simple suggestions for the legislature to consider.

If adopt and amend becomes the standard then Section 9 is in effect nullified and the people could never have their voice heard by ballot initiative. She argued that if the Legislature felt that a ballot proposal was harmful, its remedy is to have its own proposal on the ballot.

Chief Justice McCormack focused on the timing of the amendment, asking whether it would have been permissible for the amendment to occur in January, after the close of the 2018 regular session? What if during the same session, the Legislature just amended the law to correct citations in the adopted initiative? Is the issue the timing or the will of the people?

Justice Cavanagh asked if the court finds adopt and amend is not permitted, what would be the remedy? Do the original ballot initiatives stand? The will of the people was to have a state wide vote on the initiatives. So, should the initiatives be made law or should they be put on the ballot for a vote as originally intended?

Two more jurists (Mark Brewer and Samuel Bagenstos) argued that adopt and amend was unconstitutional. Mr. Bagenstos argued that adopt and amend allows the Legislature to kill any legislation that it does not agree with, and any tie on this issue should go to the people since the power was reserved to the people.

Justice Viviano asked if Art. 2 § 9 was put in place because of a mistrust of the legislature, why wouldn’t there have been more protections put in place in the constitution to prevent adopt and amend? Chief Justice McCormick said some amendments may further the will of the people while others could thwart. How should it be determined? Justice Bernstein asked doesn’t this process provide a ready means to thwart the will of the people?

Mr. Restuccia, who had reserved three minutes for rebuttal, had the final word.  He noted that it may be difficult to determine whether an amendment is friendly to the will of the people or not and this should not be the test. The question is whether the Legislature has the power to amend in these circumstances. The constitution is silent on this issue. There is no restriction or prohibition. The remedy is that if the Legislature doesn’t act to further the will of the people, they can be voted out. That is the remedy.

So, is it the process or the change in the law itself that will be the primary issue for the Supreme Court? Maybe it will be both. Were the new Paid Medical Leave Act and minimum wage rate law constitutionally enacted or not? If not, what is the remedy? Do the original initiatives become law or do they get placed on the ballot?

Unfortunately, I can’t provide you with answers to these questions or predict what the Supreme Court will do with any certainty, but I did walk away with the sense that the court was troubled by what had occurred. Hopefully the Supreme Court will issue an advisory opinion. Stay tuned.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2019.