“Current Issues Before the NLRB”

By: LERA & Labor@Wayne

Detroit Labor and Employment Relations Association (LERA) and

Labor@Wayne cordially invites you to its next meeting.

Thursday, May 17, 2018

5:30-7:30pm

Please join us for a presentation on “Current Issues Before the NLRB”

Speaker is Peter Robb, General Counsel of National Labor Relations Board

Location: Westin Southfield Hotel- 1500 Town Center, Southfield, MI 48075

Cost: $30 per person, $5 student rate. Payment can be made at the event.

Cost includes light food. Cash bar will be available.

 

Please email your RSVP confirmation by Monday, May 14, 2018 to lera@cousenslaw.com or call 248-355-2150.

Any questions, please contact Dr. Marick Masters at 313-577-5358 or marickm@wayne.edu

COURT CONFIRMS JOB APPLICANTS CAN BRING DISPARATE IMPACT CLAIMS UNDER THE ADEA

By: Carol G. Schley, Clark Hill PLC

A recent decision from the Seventh Circuit Court of Appeals held that disparate impact claims under the Age Discrimination in Employment Act (“ADEA”) are not only available to employees, but to job applicants as well.  Based upon this holding, the court allowed an older applicant’s claim against an employer to proceed, which alleged that a job description requiring a maximum level of experience adversely impacted older job applicants.

The case, Kleber v. CareFusion Corp., involved an experienced 58-year-old attorney who applied for an in-house counsel job at CareFusion.  While the job posting sought someone who could “assume complex projects,” it also stated that applicants should have “3 to 7 years (no more than 7 years) of relevant legal experience.”  Although Kleber had many more years of experience, he applied for the position.  He was not selected for an interview and CareFusion hired a 29-year-old for the position.

Kleber subsequently filed a lawsuit against CareFusion, asserting that the job description’s requirement of a maximum number of years of work experience was “based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions … and has a disparate impact on qualified applicants over the age of 40.”  CareFusion argued that the maximum experience requirement was lawful because CareFusion was concerned that more experienced workers would “not be satisfied” with the job’s “less complex duties,” leading to retention issues.  CareFusion also argued that, based upon the language of the ADEA, only employees, not job applicants, could assert claims of disparate impact under the statute.  In the trial court, CareFusion prevailed, and Kleber’s lawsuit was dismissed.  However, on appeal, the 7th Circuit Court of Appeals reversed.

The language of the ADEA analyzed by the Court of Appeals was 29 U.S.C. §623(a)(2), which  provides that it is unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age….”  CareFusion argued that because this section of the ADEA did not specifically reference job applicants, its protections did not extend to them.  CareFusion also cited a 2016 case from the 11th Circuit which supported its argument that disparate impact claims could not be brought by job applicants.  However, the court rejected CareFusion’s arguments, finding that the statute’s “broad language easily reaches employment practices that hurt older job applicants as well as current employees.”  The court held that where an employer requires a minimum or maximum number of years of experience for a position, it is “classifying its employees” as that phrase is used in the statute. The court further held that the phrase “any individual” in the statute is broad and includes job applicants.  Thus, the court held that the ADEA covered the situation at issue before it, i.e., where the employer “classified” its employees in manner that required a maximum number of years of experience for a position, resulting in an alleged disparate impact on older applicants, like Kleber.

The court further held that its conclusion was consistent with the purpose of the ADEA, which is “to prohibit arbitrary age discrimination in employment.”  According to the court, “[t]here can be no doubt that Congress enacted the ADEA to address unfair employment practices that make it harder for older people to find jobs.”   The Kleber court thus reversed the lower court’s dismissal of Kleber’s disparate impact claim, and allowed the claim to proceed to trial in the lower court.

While Michigan is not within the jurisdiction of the 7th Circuit Court of Appeals, the Kleber case is a reminder to employers that job requirements that appear neutral on their face may run afoul of the ADEA (and Michigan’s equivalent statute, the Elliott-Larsen Civil Rights Act) if, when applied, they tend to negatively impact employees and applicants on the basis of their age.  Therefore, employers should carefully review their employment practices and documents (job postings, job descriptions, employee handbooks, etc.) to ensure that they do not include requirements that may adversely impact individuals on the basis of their age or other protected classifications.  As it is not always easy to spot problematic areas that may run afoul of anti-discrimination laws, especially when the practice or language used is neutral on its face, it is advisable to undertake these tasks with the assistance of legal counsel.

Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC.  She can be reached at cschley@clarkhill.com or (248)530-6338.                              

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.  May 2018

OFCCP On Mission To Listen To Contractors

By: Julia Turner Baumhart

The Office of Federal Contract Compliance Programs (OFCCP) recently announced it is planning to listen to federal contractors.  It plans to do so by surveying those contractors that completed an agency compliance review between October 1, 2012 and September 30, 2017.  Through this anonymous survey, OFCCP will ask for concrete suggestions on improving interactions between the agency and the contractor community.  Implicitly acknowledging these relationships need to improve, the surveys will cover communications, transparency, and timeliness.

To those who have been paying attention to the recent news out of OFCCP, the agency’s listening posture should not come as a surprise.  Rather, OFCCP, under the leadership of recently appointed Director Ondray Harris, appears headed toward both downsizing and a major attitude adjustment.  Evidence of both can be found in the OFCCP’s input to the fiscal year 2019 budget proposed by the Trump Administration, and a series of OFCCP-hosted stakeholder meetings in January 2018, as well as the newly announced anonymous survey effort.

            According to the proposed FY 2019 budget for the U.S. Department of Labor, which houses OFCCP, the OFCCP’s estimated obligations for FY 2019 total $9.1 million, down 12.3% from current spending levels.  This translates to a 14.2% reduction in headcount, to an historic low of 450 employees — in contrast to the recent high of 788 employees in FY 2010.  Some of the forecasted reduction has already come from two rounds of buyout offers during the final months of 2017; other downsizing has been or will be achieved through attrition and an ongoing unofficial hiring freeze.

            Both the FY 2019 budget proposal and the recent stakeholder meetings signaled a welcome shift in agency attitude. The January 2018 stakeholder meetings, led by OFCCP Director Harris, Senior Advisor Craig Leen, and Director of Policy Debra Carr, invited a number of federal contractors, representatives of civil rights groups, and representatives of several membership organizations, to three separate sessions.  In meeting with federal contractors, Director Harris shared his goals for a new and improved OFCCP.  The agency’s primary goal is to focus on developing apprenticeship programs in order to fill a defined skills gap nationwide and to develop better parity in the workforce.  Other primary goals include (1) incentivizing employers to voluntarily comply with agency regulations; (2) increasing outreach for individuals with disabilities; and (3) increasing agency transparency through compliance assistance.  The OFCCP, as led by Director Harris, recognizes that some 98% of contractors undergoing audits are found to be in full compliance, and so the agency going forward is planning an “innocent until proven guilty” approach rather than its old standard operating procedure, which assumed the opposite.

            These goals are amplified in the FY 2019 budget proposal, which identifies technical assistance for federal contractors as one of two main priorities.  Along with increased emphasis on systemic discrimination (the other budget priority), OFCCP plans to implement technical assistance through several initiatives.  These initiatives include, in addition to the focus on apprenticeship programs, improving training for compliance officers; developing regional contractor training programs; reconstituting the Reagan-era contractor recognition programs; and reorganizing (and probably closing) many of OFCCP’s district and area offices.  It is anticipated that several “skilled regional centers,” staffed by experienced and specialized compliance officers, will more efficiently replace many of the 50-plus local offices.

            Harris quietly started his role as OFCCP’s newest Director on December 10, 2017, squelching speculation that the agency would soon merge into the EEOC.  Harris had joined the Department of Labor in June 2017 as a senior advisor.  He is a former management-side employment and labor lawyer in private practice, and also a former Department of Justice appointee, both of which should position him well for leading change at OFCCP.

            Seemingly in keeping with its kinder and gentler approach, OFCCP mailed its Corporate Scheduling Announcement Letters to contractors on February 1, 2018, using the following guidelines:

  • Setting no more than ten establishments of a single contractor on the audit scheduling list and no more than four establishments per contractor in the same district office;
  • Intending to set no establishment on the audit scheduling list that had closed an audit within the last five years.

OFCCP started sending the actual audit scheduling letters on a rolling basis on March 9, 2018.

And now, OFCCP’s latest announced effort at transparency:  seeking out contractor suggestions on how the agency can best improve its relationships with the business entities it audits.  Contractors are keeping their fingers crossed that OFCCP truly is signaling the start of a new era.

This e-blast was written by Julia Turner Baumhart, who is a member of the Detroit SHRM Legal Affairs Committee.  Ms. Baumhart is a partner in the labor and employment firm of Kienbaum Opperwall Hardy & Pelton, P.L.C. in Birmingham, Michigan and can be contacted at jbaumhart@kohp.com or (248) 645-0000. 

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.  April 2018. 

Shell’s Wellness Journey: How Care Impacts Individual, Team, and Organizational Health

By: Michigan Wellness Council

Register Today

May 1, 2018
Shell’s Wellness Journey:
How Care Impacts Individual, Team, and Organizational Health

When: Tuesday May 1, 2018, 12pm to 1pm
Certification: This program is approved for 1.0 PDCs.*

Program Details: Shell has had a long-standing wellness program for over two decades.  For much of its history, the wellness program focused on physical wellbeing, and over the past few years, it has expanded into mental and emotional wellness.  This presentation will discuss this evolution, specific programs on resilience and care for people, and the impact of care on business outcomes.

Presentation Objectives 

  1. Learn how the holistic approach to wellness was developed
  2. Identify strategies to build the business case for care and wellness
  3. Understand Shell’s approach to quantifying health programs with regard to business outcomes

Speaker Biography – Krystal Sexton, PhD, is the Americas Regional Lead for Human Performance and Care at Shell.  Trained as an epidemiologist, Krystal joined Shell in 2013 after a career in academic medicine.  At Shell, she developed the analytic approaches for large global projects, with a focus on Resilience and Care for People.  As Shell developed its Human Performance and Care strategy, she expanded her work into cognitive and social neuroscience, positive psychology, and organizational psychology to better understand the interplay between these subjects and organizational performance.  Today, Krystal has a largely business interfacing role, synthesizing science into business outcomes for leadership teams across Shell.

Krystal received her PhD from the University of Texas School of Public Health and completed postdoctoral fellowships at both MD Anderson Cancer Center and Baylor College of Medicine.  She holds an adjunct assistant professor at UTSPH and is an active member of several scientific and academic organizations.

Register Here
Members free (registration required)
$15 advance registration (non-members; become a member)

*(Provided by our Education Partner: National Association for Business Resources Best and  Brightest Programs is recognized by SHRM to offer SHRM-CP®or SHRM-SCP® professional development credits (PDCs).

Can Prior Salary Still Be A Factor In Setting New Hire Salary? Not Allowed, According To Ninth Circuit!

By: Julia Turner Baumhart

What employer has not considered an applicant’s prior salary as at least a factor in determining what compensation to offer a newly hired employee?  Surely, employers routinely ask applicants for prior salary information.  Employers, however, may find themselves hard pressed to defend their actions if the U.S. Court of Appeals for the Ninth Circuit makes inroads with its novel interpretation of the Equal Pay Act’s “any factor other than sex” affirmative defense.  This is because the Ninth Circuit determined that – not only can the employer not consider prior salary as the only factor in setting a newly hired employee’s salary – the employer cannot even consider it as one factor among many.

In its recent en banc opinion, Rizo v. Yoving, six judges on an eleven-judge panel interpreted the following “equal pay for equal work” provision of the EPA:

No employer . . . shall discriminate, . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility . . . except where such payment is made pursuant to . . . a differential based on any factor other than sex.

Previously, the same court had held that prior salary, at least when considered in combination with other factors such as prior experience and education, could indeed be considered a factor other than sex under the EPA.

The Rizo panel overruled the earlier Ninth Circuit decision, even though it did not need to.  And in doing so, it went far beyond the standard generally accepted among other appellate courts, which is that prior salary can at least be considered as a factor in determining what salary to offer.  Rather, according to Rizo, “prior salary, whether considered alone or with other factors, is not job related and thus does not fall within an exception to the Act that allows employers to pay disparate wages.”  And to make sure its decision left no room for debate or disagreement, the majority characterized the question before it as “simple” and the answer to the question as “clear.”

In reality, it is neither.  As if to underscore its commitment to making new law, the majority answered a “question” that it was not even asked.  The employer in question admittedly used prior salary as the only factor in setting the salaries of its newly hired employees, male and female, meaning there was no need for the majority to depart from the existing consensus permitting use of prior salary as a factor among others.  It could have (and should have) limited its ruling to salary systems – like the one before it – that used prior salary as the sole factor.  So the question before it was not the “simple” one it claimed to be answering.

And the answer itself was far from “clear,” as demonstrated by the fact that five of the eleven en banc judges authored or joined separate opinions, all of which agreed that prior salary – at least in most circumstances – could be at least a factor among many.

Whether the Rizo opinion will find advocates who succeed in expanding its novel holding to the other circuits is an open question.  The Ninth Circuit is by far the largest judicial circuit in the country.  It is the only circuit with so many active judges that it hosts three en banc panels, rather than the usual one.  It also is frequently reversed by the U.S. Supreme Court.  Moreover, disagreements between the Ninth Circuit and the Sixth Circuit (with jurisdiction over the Michigan, Ohio, Kentucky and Tennessee federal courts) are frequent.  Nevertheless, local employers should take heed from the Rizo opinion and think carefully before considering prior salary in setting salary offers to newly hired employees.

This e-blast was written by Julia Turner Baumhart, who is a member of the Detroit SHRM Legal Affairs Committee.  Ms. Baumhart is a partner in the labor and employment firm of Kienbaum Opperwall Hardy & Pelton, P.L.C. in Birmingham, Michigan and can be contacted at jbaumhart@kohp.com or (248) 645-0000. 

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.  April 2018. 

American Society of Employers (ASE) Welcomes 16 New Members

By: American Societ of Employers

Media Contact: Heather Nezich, Manager, Communications, ASE, 248.223.8040, hnezich@aseonline.org

Livonia, Mich. —April 17, 2018 — The American Society of Employers (ASE), one of the nation’s oldest and largest employer associations providing people-management information and services to Michigan employers, announces 16 organizations joined ASE as members during the first quarter of 2018. The organizations are:

  • CAN Council Great Lakes Bay Region, a leader in children’s’ advocacy, located in Saginaw and Bay City, MI, working to address children’s and families’ needs and create a better community for children.
  • City of Mount Pleasant, a city in central Michigan with over 26,000 residents and home to Central Michigan University.
  • Flint Cultural Center Corporation, a nonprofit organization committed to making sure the Flint Cultural Center continues to be a vibrant and comfortable gathering place.
  • Gerdau Special Steel, a manufacturer of engineered steel bars located in Jackson, MI.
  • GNS – Merit Technologies Worldwide, a full-service supplier of metal formed parts and assemblies located in Canton, MI.
  • Hollingsworth, a lead logistics provider to the manufacturing and distribution communities that is headquartered in Dearborn, MI.
  • Hosco Holdings, a manufacturer and global marketer of smooth bore, “cavity-free” stainless steel fittings and accessories designed specifically for the use in manual or automated paint circulating and application finishing systems located in Wixom, MI.
  • Ideal Contracting, a certified minority (MBE) General Contractor/Construction Manager headquartered in Detroit, MI.
  • John N. Santeiu & Son, Inc., a family owned and operated full service funeral home in Garden City, MI.
  • MacDermid Enthone, a division of MacDermid Performance Solutions that provides chemical process solutions and materials that enhance the products people use every day.  They are located in Ferndale, MI.
  • MidMichigan Community Health Services, a federally qualified rural community health center (FQHC) based in Houghton Lake, MI.
  • Morpace Inc, a top 50 international, full-service market research and consulting firm located in Farmington Hills, MI.
  • North American Interconnect, a designer and manufacturer of integrated connectivity solutions for Industrial Technology, Medical, Telecom and Data industries located in Troy, MI.
  • Presbyterian Villages of Michigan – Southfield, a premier senior living provider located in Southfield, MI.
  • SER Metro Detroit, a multi-service, multi-state corporation that serves as a direct link to gainful employment of diverse populations. They are located in Detroit, MI.
  • Transtar Autobody Technologies, a provider of body shop solutions in the automotive aftermarket located in Brighton, MI.

ASE president & CEO, Mary E. Corrado, made the announcement and stated, “ASE welcomes our newest members in this first quarter of 2018.  We look forward to working with them and providing services and information to help them be the best employers they can be.”

About the American Society of Employers (ASE) – a Centennial Organization

Celebrating 115 years, the American Society of Employers (ASE) is a not-for-profit trade association providing people-management information and services to Michigan employers. Since 1902, member organizations have relied on ASE to be their single, cost-effective source for information and support, helping to grow their bottom line by enhancing the effectiveness of their people. Learn more about ASE at www.aseonline.org.

KHARMA Day of Development Conference- May 11

By: Kalamazoo SHRM

KHRMA is once again holding it’s.. Day of Development Conference on May 11, 2018. They are excited to announce that the event is approved for 6.5 CE credits and 1.5 Business credits!  The closing keynote speaker will feature Tony Rubleski, the bestselling creator of the Mind Capture book series!  I’ve attached some additional information about our annual event, please consider sharing with your membership. 

For more event details, please visit: http://www.mishrm.org/events/EventDetails.aspx?id=1088063&group=141773

American Society of Employers (ASE) announces Michigan’s premier total rewards Compensation and Benefits Conference will take place on May 23 at The Henry in Dearborn, MI

By: American Society of Employers

American Society of Employers (ASE) announces Michigan’s premier total rewards Compensation and Benefits Conference will take place on May 23 at The Henry in Dearborn, MI

Media Contact: Heather Nezich, ASE, 248.223.8040, hnezich@aseonline.org

Livonia, Mich. —April 12, 2018 — The  American Society of Employers (ASE), one of the nation’s oldest and largest employer associations providing people-management information and services to Michigan employers, announces its 8th annual Compensation and Benefits Conference will be held on Wednesday, May 23 at The Henry – Autograph Collection in Dearborn, MI. 

ASE CEO, Mary E. Corrado, announced the conference and stated, “Employee recruitment and retention continue to be top priorities for Michigan employers and the effectiveness of an organization’s total rewards programs affects both.  This conference will cover total rewards topics such as benefits, compensation, and wellness trends.  In addition, it will cover 2018 tax law changes, HR’s role in the opioid epidemic, pay equity and wage and hour updates.”

Additionally, ASE will reveal the results of its 2018 compensation surveys. It is the 66th year the surveys have been published.

The keynote speaker for the 2018 conference is Josh Schneider, Director of The Millennial & Employee Engagement Institute.  His presentation is entitled “The Employer-Employee Relationship Has Changed.  Forever.”  In this keynote presentation Josh will bring to the forefront new ideas, social psychology, and practical insights from the new pack of pioneers who have learned to unlock the human potential in their employees. For a complete conference agenda and registration information, please visit the ASE website.

About the American Society of Employers (ASE) – a Centennial Organization

Celebrating its 115th year, the American Society of Employers (ASE) is a not-for-profit trade association providing people-management information and services to Michigan employers. Since 1902, member organizations have relied on ASE to be their single, cost-effective source for information and support, helping to grow their bottom line by enhancing the effectiveness of their people. Learn more about ASE at www.aseonline.org.

Conservative Justices Rule in FLSA Case

 

By:  Claudia D. Orr

 

When I saw that the US Supreme Court had ruled that service advisors at automobile dealerships were exempt employees under the Fair Labor Standards Act (“FLSA”), I have to admit I was not very excited.  That would be a narrow ruling, and I don’t represent any car dealerships.

But, there is something important in the decision – the five conservative justices of the court (Justices Thomas, Roberts, Kennedy, Alito and Gorsuch) expressly rejected the idea that the FLSA exemptions are to be narrowly construed.  This is a big change from how the FLSA has been applied by the Department of Labor. The other four justices (Justices Ginsberg, Breyer, Sotomayor, and Kagan) sharply dissented.

An exempt employee is not entitled to overtime pay and, in a few limited professions, the employee is also exempt from minimum wage requirements. The case, Encino Motorcars, LLC v Navarro, ___ S. Ct. ___ (2018), will be helpful to employers when they defend the exempt status of an employee.  This case may also provide insight into the high court’s rulings in future employment cases.

However, employers located in Michigan, Ohio, Kentucky and Tennessee are also subject to the rulings of the federal Sixth Circuit Court of Appeals which requires employers to bear a “heightened” burden of proof, more than a preponderance (or a mere tipping of the scales of justice), when proving an employee is an exempt employee. So, while the exemption itself is no longer to be narrowly construed, the burden of proof still remains high for employers in the Sixth Circuit.

Position descriptions should be reviewed every few years because duties change and positions morph. For example, a manager who was previously classified as exempt under the executive exemption may now only manage one full time employee and is no longer eligible for the exemption.  Some positions are easily assigned the status of exempt or non-exempt, but some are more difficult.  Those positions should always be reviewed with experienced employment counsel, such as the author.

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).  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. April 2018.

Shell’s Wellness Journey: How Care Impacts Individual, Team, and Organizational Health

By: Michigan Wellness Council

April 11th Webinar: Shell’s Wellness Journey: How Care Impacts Individual, Team, and Organizational Health

By: Krystal Sexton, PhD, Americas Regional Lead for Human Performance and Care

National Association for Business Resources Best and  Brightest Programs is recognized by SHRM to offer SHRM-CP®or SHRM-SCP® professional development credits (PDCs). This program is pending for 1.0 PDC. For more information about certification or recertification, please visit www.shrmcertification.org.

Date: Wednesday, April 11, 2018

Schedule:
12:00pm to 1:00 pm

Presentation Objectives: Shell has had a long-standing wellness program for over two decades.  For much of its history, the wellness program focused on physical wellbeing, and over the past few years, it has expanded into mental and emotional wellness.  This presentation will discuss this evolution, specific programs on resilience and care for people, and the impact of care on business outcomes.

Participants will:

  1. Learn how the holistic approach to wellness was developed
  2. Identify strategies to build the business case for care and wellness
  3. Understand Shell’s approach to quantifying health programs with regard to business outcomes

Speaker Bio: Krystal Sexton, PhD, is the Americas Regional Lead for Human Performance and Care at

Shell.  Trained as an epidemiologist, Krystal joined Shell in 2013 after a career in academic medicine.  At Shell,

she developed the analytic approaches for large global projects, with a focus on Resilience and Care for People.  As Shell developed its Human Performance and Care strategy, she expanded her work into cognitive and social neuroscience, positive psychology, and organizational psychology to better understand  the interplay between these subjects and organizational performance.  Today, Krystal has a largely business interfacing role, synthesizing science into business outcomes for leadership teams across Shell.

Krystal received her PhD from the University of Texas School of Public Health and completed postdoctoral fellowships at both MD Anderson Cancer Center and Baylor College of Medicine.  She holds an adjunct assistant professor at UTSPH and is an active member of several scientific and academic organizations.

Registration

$15 advance registration (non-members; become a member)

Register now by following this link.

Michigan  Wellness Council (MWC) is a nonprofit whose vision is the health and wellbeing of Michigan employers will be the best in the nation and mission is to inspire implementation of leading workplace wellness strategies through thought-leadership and education.

Contact: Rita Patel rita.patel@michiganwellnesscouncil.org