BOUNCING STRESS BALLS LEAD TO ADA AND FMLA CLAIMS

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By: Carol G. Schley, Clark Hill PLC

 

BOUNCING STRESS BALLS LEAD TO ADA AND FMLA CLAIMS

 

            A recent case from the federal Sixth Circuit Court of Appeals (which includes Michigan) is a reminder that what appears to be innocuous workplace behavior can sometimes snowball into a lawsuit.

            The case, Tinsley v. Caterpillar Financial Services, involved plaintiff Cindy Tinsley, who was a long-time employee of Caterpillar.  After being employed for several years, Ms. Tinsley was assigned to the Four Pillars Project (“FPP”). Her direct supervisor was Amy Clendenon, who in turn reported to Paul Kaikaris.

            After a couple of years, Ms. Tinsley asked Mr. Kaikaris to remove her from the FPP because she was overwhelmed with work and feeling “stressed beyond what [she was] physically able to handle.”  In response, Mr. Kaikaris and Ms. Clendenon reassigned some of Ms. Tinsley’s projects.  Shortly thereafter, Ms. Tinsley took a few days off under the FMLA for a “confidential medical condition.” About two months later, Mr. Kaikaris and Ms. Clendenon met with Ms. Tinsley to discuss her poor work performance, gave her a “did not meet performance expectations” mid-year review, and put her on a performance improvement plan (“PIP”).  Ms. Tinsley vehemently disagreed with the PIP, and told Mr. Kaikaris that she believed he gave her a poor review because she had complained to him about her co-workers bouncing stress balls while at work.  She then sent emails to HR about the stress of her position, stating that her mid-year review was inaccurate and that she was being subject to a “hostile work environment” due to her co-worker’s “horseplay,” which included stress ball bouncing.  HR investigated and found that Ms. Tinsley mid-year review was appropriate.

            Thereafter, Ms. Tinsley began taking frequent medical leave due to “mental and emotional duress.”  She also repeatedly requested a new supervisor.  The employer did not provide her with a new supervisor, but for an extended period of time granted her leave requests, providing her with FMLA leave that significantly exceeded the statutory 12 weeks maximum.  Ultimately, the employer advised Ms. Tinsley it could not reasonably accommodate her medical condition or her request for a new supervisor and denied her request for additional medical leave.  She then retired and sued the company for failure to accommodate under the ADA and retaliation under the FMLA.

            At the trial court level, the employer won on summary judgment on both claims, and Ms. Tinsley appealed.  The Court of Appeals affirmed the dismissal of the ADA claim, finding that Ms. Tinsley wasn’t disabled under the ADA.  To establish a disability, Ms. Tinsley was required to show she was substantially limited in a major life activity.  She claimed that she was limited in the major life activity of working, but all she could show was that she couldn’t perform her particular job.  This was insufficient according to the court, because “a plaintiff who asserts that her impairment substantially limits the major life activity of ‘working’ is still required to show that her impairment limits her ability to ‘perform a class of jobs or broad range of jobs.’”  Therefore, because she did not prove a disability under the ADA, the employer had no obligation to reasonably accommodate her.

            However, with respect to the FMLA claim, the Court of Appeals reversed the lower court.  In particular, the court found that the close temporal proximity (approximately two months) between Ms. Tinsley taking FMLA leave and her negative performance review raised an inference that the performance review was done in retaliation for her taking the leave.  Accordingly, the court remanded the case back to the trial court for further proceedings on the issue of whether the employer could demonstrate a legitimate, non-discriminatory reason for its adverse employment action against Ms. Tinsley.

            This case demonstrates that seemingly innocuous conduct in the workplace, like bouncing stress balls, can spiral into a lawsuit.  While we don’t know all of the circumstances surrounding Ms. Tinsley’s employment, the case indicates that there are a few things the employer could have done that perhaps may have avoided a lawsuit, such as:

  • Minimizing disruptive behavior in the workplace. Tinsley’s main complaint against her supervisor was that he allowed raucous behavior at work.  While such behavior is not necessarily legally forbidden, it can negatively impact the work atmosphere and lead to dissention, especially if it begins to get too out of hand.  There is nothing in the case that indicates the employer ever told Mr. Kaikaris to cool it with the stress ball bouncing.
  • Monitoring employee performance to address issues early and on an ongoing basis. Tinsley was shocked by her mid-year performance review and being put on a PIP.  While sometimes an employee’s work performance can decline rapidly, in many cases, poor or declining performance is something that, if monitored correctly, can be caught and addressed early.  You want to avoid situations where an employee is blindsided by a negative performance review.
  • Properly Tracking FMLA Leave. Tinsley’s repeated requests for leave resulted in the employer granting her FMLA leave well beyond the 12 weeks statutory maximum.  An employer should carefully track and document FMLA leave to ensure compliance with the law and to avoid an employee’s leave time running amok.
  • Hiring Counsel. When there are ongoing issues with an employee, or situations that seem potentially problematic, it is best to involve legal counsel sooner rather than later.  Legal counsel can provide guidance on how to effectively handle the issues while minimizing potential liability, hopefully preventing litigation down the road.

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.  April 2019

 

Ultimate Software Hosts Free HR Workshop in Grand Rapids

 

 

Join other HR professionals from across the state at a complimentary HR workshop!

Your skills as an HR leader have never been in greater demand. The quality and quantity of business information you need at your fingertips, along with the creativity that’s expected of you on a daily basis by senior leadership and your employees, require a wealth of knowledge about your company, your industry, and your competition. Are you keeping pace with everyone’s expectations, or are you bogged down by mundane and tactical responsibilities?

Learn how to stay above the curve–and win accolades from your senior leaders–during this complimentary Interactive HR Workshop at JW Marriott Grand Rapids. You’ll discover the tested and highly successful solutions that companies like yours have implemented to improve their organizations, and you’ll leave with the tools and strategies you need to win buy-in and set them in motion. Plus, an employment attorney from a major law firm will offer advice on how to avoid costly wage and hour litigation.

Topics Include How To:

  • Coach team members with direct communication
  • Navigate three HR megatrends for 2019
  • Stay up to date with employment law changes, and much more!

This program has been pre-approved for 4.5 credits from the HR Certification Institute, 4.5 credits from SHRM for Professional Development Credits (PDCs), and is pending approval for rchs from the APA.

More Information on Speakers, Agenda & Registration Here:

https://www.ultimatesoftware.com/HR-Workshop-Overview/7010d000001GUkl/258

Any questions?
Contact Christie Hecht at 248.229.5125 or Christie_Hecht@ultimatesoftware.com

More Drama with the EEO-1 Reporting

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By: Miriam L. Rosen, McDonald Hopkins PLC

 

More Drama with the EEO-1 Reporting

 

One form, so much drama.

            Employers with at least 100 employees and certain federal contractors with 50 or more employees must file a Standard Form 100, Employer Identification Report (EEO-1 Form)  annually identifying the number of employees who work for the organization by job category, race, sex, and ethnicity.

            Seems simple enough, but really so much drama.

            For years, employers submitted the EEO-1 Form annually by September 30th reflecting the make up of their workforce for a designated pay period during the preceding months.  Towards the end of the Obama Administration in September 2016, however, the EEOC implemented a new – and highly controversial – component to the EEO-1 reporting by requiring employers to disclose pay data by race, ethnicity, and sex by job category.

            To address the processing related to implementing the new pay reporting requirements, the EEOC pushed the 2017 EEO-1 filing date from September 30, 2017 to March 31, 2018.

            However, in August 2017 with the new Trump Administration in place, White House Office of Management and Budget indefinitely suspended the pay data reporting requirement.  The OMB said the data would have limited use, would be burdensome to collect, and raised privacy concerns.  In contrast, various groups supporting collection of pay data saw things differently.   As you might expect, litigation ensued.

            With the litigation still pending, the EEOC set the date for filing the 2018 EEO-1 data for March 1, 2019.   Then, the partial government shutdown in January 2019 impacted the opening of the portal for EEO-1 data submission. As a result, the EEOC delayed the EEO-1 filing deadline to May 31, 2019 with the portal scheduled to open March 18, 2019.

                       But then, more drama.

            In the midst of those scheduling issues, on March 4, 2019 the federal judge hearing the pay data case ordered the EEOC to reinstate the pay reporting requirements – ASAP.   Initially, the EEOC sought to delay the pay reporting until 2020. However, at an April 3, 2019 hearing, the EEOC indicated that it could implement the pay reporting component by September 30, 2019 by using an outside contractor at a cost in excess of $3 million dollars.

            In its brief to the court, the EEOC noted that the expedited timeline would present “significant practical challenges” in collecting and processing the payroll data.   Of course, no acknowledgement of the practical challenges that employers will face in collecting and processing the data that the EEOC recognizes is actually likely to “yield poor quality data because of the limited quality control and quality assurance measures that would be implemented due to the expedited timeline.”

            So, where do things stand now? The current status is that the standard EEO-1 reporting of race, sex, and ethnicity by job category is due by May 31, 2019.  In the coming weeks, the federal judge will assess the EEOC’s position and make a determination on the pay data reporting deadline.  It’s possible that a second EEO-1 report with pay data by race, ethnicity and sex will be due by September 30, 2019.   Of course, it’s equally possible, that some development will further delay the pay reporting requirement.

            One form, so much drama.

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

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 2019.

 

 

U.S. DEPARTMENT OF LABOR CLARIFIES FMLA LEAVE ISSUE

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By: Carol G. Schley, Clark Hill PLC

 

 

U.S. DEPARTMENT OF LABOR CLARIFIES FMLA LEAVE ISSUE

 

            It is a familiar situation:  an employee needs to take time off for a reason that qualifies under the Family and Medical Leave Act (“FMLA”), but he asks if he can just use his accrued vacation time and “save” his FMLA leave for later use.  In the past, employers faced with this situation might have granted the employee’s request.  However, a recent Opinion Letter from the U.S. Department of Labor (“DOL”) clarifies that under these circumstances, the employer must deem the leave as FMLA-qualifying and start the FMLA clock, regardless of the employee’s desires.

            Opinion Letters are issued by the DOL in response to queries it receives about various federal laws.  While Opinion Letters are not binding like court decisions, they can be used as persuasive authority on statutory interpretation and reasonably relied upon by employers in complying with the law.  The March 14, 2019 Opinion Letter addressed “whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave or permit employees to expand their FMLA leave beyond the statutory 12-week entitlement.”  In response, the DOL opined that when information is presented to an employer that indicates an employee is requesting leave that is FMLA-qualifying, the FMLA is triggered.  According to the DOL, there is no flexibility in the FMLA to allow an employee to choose whether to take FMLA leave:

            Once an eligible employee communications a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave… [T]he employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation.

            The DOL also clarified in the Opinion Letter that an employer may not provide employees with more than 12 weeks of FMLA-qualifying leave (or 26 weeks of military caregiver leave) per year.  While the DOL recognized that employers can provide employees with more generous leave benefits, “such additional leave outside of the FMLA cannot expand the employee’s 12-week (or 26-week) entitlement under the FMLA.”  As a result, “[i]f an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”

            In summary, the Opinion Letter clarifies an employer’s response to a request by an employee to “save” their FMLA leave.  The response, simply, is “no.”  Further, per the Opinion Letter, if an employee wants to take any accrued paid leave for a reason that is also FMLA-qualifying, the paid leave and the FMLA must run concurrently.

            It is interesting to note that the Opinion Letter directly conflicts with a 2014 decision from the federal Ninth Circuit Court of Appeal, Escriba v. Foster Poultry Farms, Inc., in which the court held that an employee “can affirmatively decline to use FLMA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.”  The DOL referenced the Escriba case in its Opinion Letter and said that it disagrees with its holding.  Since Michigan is part of the federal Sixth Circuit, the Escriba decision is not controlling over Michigan employers and, therefore, they should follow the DOL’s recent Opinion Letter on FMLA leave designation, pending any further developments in the courts.

            The Opinion Letter is a reminder that FMLA leave issues can be tricky, as evidenced by the situation here where the DOL and a Circuit Court of Appeals came to completely opposite conclusions on the same issue.  When you are in doubt on how to deal with time off requests from an employee, which may not only implicate the FMLA, but also other laws such as the ADA and Michigan’s new Paid Medical Leave Act, it is always best to consult with 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.  April 2019

Shamoun appointed to state’s cannabis regulation advisory group

Plunkett Cooney

 

By: Plunkett Cooney

 

FOR IMMEDIATE RELEASE
DATE:  April 10, 2019
CONTACT:  John E. Cornwell (248) 901-4008

 

Shamoun appointed to state’s cannabis regulation advisory group

 

 

Shamoun_PRBLOOMFIELD HILLS, Mich. – April 10, 2019 – Attorney Alan Shamoun of Plunkett Cooney – one of the Midwest’s oldest and largest law firms – has been appointed to serve as a member of the state’s Adult-Use Marijuana Stakeholder Workgroups.

Shamoun volunteered to serve on the attorney workgroup as part of his practice, which includes a focus on representing cannabis businesses in the medical and recreational use sectors. He is one of only 13 attorneys statewide to be selected for service on the workgroups, which were formed by Michigan’s Department of Licensing and Regulatory Affairs (LARA).

The purpose of the attorney workgroup is to provide input and advice to the Michigan Bureau of Marijuana Regulation on topics related to the Michigan Regulation and Taxation Act. The new law allows legal use of marijuana for people age 21 and older.

Shamoun applies his tax and business law expertise in the cannabis industry by assisting clients involved in the state and local business application processes. He also works with them once they are licensed to remain compliant with numerous industry regulations.

“This is a tremendous opportunity for me to assist the state with its implementation of the new regulation and taxation act,” said Shamoun, who practices in Plunkett Cooney’s Bloomfield Hills office. “There are a lot of issues to consider, and I am glad to be able to provide a voice for my clients in this process.”

The attorney workgroup will begin meeting this month in the office of the Michigan Bureau of Marijuana Regulation, which is located at 2407 North Grand River Avenue, Lansing, MI 48906.

Shamoun is a member of Plunkett Cooney’s Business Transactions & Planning Practice Group and the firm’s  Cannabis Law Industry Group. He focuses his practice primarily on tax conflicts involving individuals and corporations. His expertise also includes the areas of corporate tax and estate planning.

Plunkett Cooney is a leading provider of legal services to Michigan’s medical and recreational use cannabis industry. The firm’s attorneys helped secure some of the first business licenses issued in the state, and their expertise extends to such issues as business law, commercial litigation, employment law, environmental law, government affairs and real estate.

Established in 1913, Plunkett Cooney employs nearly 300 employees, including approximately 150 attorneys in eight Michigan cities, as well as in Chicago, Illinois, Columbus, Ohio and Indianapolis, Indiana. The firm, which provides a range of transactional and litigation services, has achieved the highest rating (AV) awarded by Martindale-Hubbell. Plunkett Cooney was also named by Crain’s Detroit Business as its first ever Law Firm of the Year.

For more information about Shamoun’s appointment to the Bureau of Marijuana Regulation Attorney Workgroup, contact the firm’s Director of Marketing & Business Development John Cornwell at (248) 901-4008 or jcornwell@plunkettcooney.com.

 

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Meyer joins Plunkett Cooney’s governmental law group

Plunkett Cooney

By: Plunkett Cooney 

 

FOR IMMEDIATE RELEASE
DATE:  April 5, 2019
CONTACT:  John E. Cornwell (248) 901-4008

 

 

Meyer joins Plunkett Cooney’s governmental law group

Meyer_PR

BLOOMFIELD HILLS, Mich. – April 5, 2019 – Attorney Brett T. Meyer recently joined Plunkett Cooney, one of the oldest and largest law firms in the Midwest, as a member of the Governmental Law Practice Group.

A member of Plunkett Cooney’s Grand Rapids office, Meyer focuses his practice on the defense of litigation in the areas of municipal law and premises liability, as well as on the defense of personal injury actions.

Meyer represents insurance carriers, public entities and municipalities, either through direct representation or insurance providers, in disputes involving alleged constitutional and civil rights violations, state and federal immunity issues, police liability, employment law and contract issues. He also conducts workplace investigations and provides workplace training and counseling for public and private employees regarding federal and state labor and employment laws.

Meyer graduated, magna cum laude, from the Michigan State University College of Law in 2011. While there, he received numerous academic awards, including the State Bar of Michigan Tax Student Achievement Award. He received his undergraduate degree, with honors, from Michigan State University in 2008.

Plunkett Cooney’s Governmental Law Practice Group includes the talents of approximately 20 attorneys across the states of Michigan and Ohio. The group members provide an array of litigation and direct representation services, including particular expertise in the areas of First Amendment violations, discrimination in employment, civil rights, premises liability, police misconduct, excessive force, zoning and land use, election law and many others.

Established in 1913, Plunkett Cooney is a leading provider of transactional and litigation services to clients in the private and public sectors. The firm employs approximately 150 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 Meyer joining Plunkett Cooney’s Governmental Law Practice Group, contact the firm’s Director of Marketing & Practice Development John Cornwell at (248) 901-4008 or jcornwell@plunkettcooney.com.

 

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Let Me Tell You What I Just Heard…

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By: Claudia D. Orr, Attorney, Plunkett Cooney 

 

Let Me Tell You What I Just Heard…

Can a rumor form the basis of a sexual harassment claim? That was the issue that everyone seemed excited about in Parker v Reema Consulting Services, a new opinion out of the United States Court of Appeals, Fourth Circuit.

While not binding on us (since we are located in the Sixth Circuit), it drew a lot of attention with amicus curiae briefs by the EEOC, the National Women’s Law Center, AFSCME, AFL-CIO, National Organization for Women Foundation, and over forty other groups. Amicus curiae briefs are filed by non-parties who have a strong interest in the subject matter and outcome and who wish to inform the court on how issues should be decided. So what caused the entire brew ha? Let’s look at the case.

Evangeline Parker worked for Reema Consulting Services, Inc. (RCS) beginning in December 2014 until May 2016. During her short, 18 month tenure, Parker went from a low-level clerk position to Assistant Operations Manager of the facility. She received six promotions, averaging one every three months! Quite the all-star, right? Or was it something else?

Well, as you might expect, a rumor was started by another RCS employee, Donte Jennings (who was hired at the same time and in the same position as Parker). He began telling other employees that Parker was having a sexual relationship with Demarcus Pickett (a high ranking manager) in order to get promoted. As fate would have it, Parker’s promotions made her Jennings boss. Kismet.

The highest-ranking manager at that warehouse facility was Larry Moppins. He helped spread the rumor by asking Pickett, “hey, you sure your wife ain’t divorcing you because you’re f—ing [Parker]”? As the rumor continued to spread, partly with the help of Moppins, employees, including those who worked for Parker, began to resent and disrespect her.

In late April 2016 (the month before she was fired), a mandatory meeting was called to discuss the rumors.  Parker and Pickett both arrived a few minutes late, together. Moppins let Pickett in, but, in front of all of her coworkers, he slammed the door in Parker’s face and locked the door.

The next day Parker arranged to meet with Moppins to discuss the rumor. Moppins blamed Parker for “bringing the situation to the workplace” and that while he had “great things” planned for her, “he could no longer recommend [Parker] for promotions” because of the rumor. He would not “allow her to advance any further within the company.” [Query, how much higher could she have gone at a warehouse after six promotions?] A few days later Moppins told Parker that he should have fired her when she started “huffing and puffing about this BS rumor” and he began screaming at Parker in anger.

Parker filed a sexual harassment complaint with RCS’s Human Resources Manger against Moppins and Jennings. Not long after that, Jennings (who started the rumor) filed a hostile work environment complaint with the Human Resources Manager against Parker. While Parker was told to have no contact with Jennings, he would go into Parker’s area and chat with her subordinates and laugh, stare and smirk at her. Parker complained about this to the Human Resources Manager, who promptly resigned. Just kidding, but what a mess she had with dueling harassment complaints, right? Let me suggest that this might have been a good time to have an employment attorney investigate the complaints.

On May 18, 2016, Parker was called into a meeting with Moppins, the Human Resources Manager, and RCS’s in-house counsel. She was issued a written warning based on Jennings’ complaint and another one for being insubordinate to Moppins and for having poor management abilities. Parker was then fired. It made me wonder why she would have received six promotions in eighteen months if, in fact, she had such poor management skills. Something certainly was amiss with this whole scenario.

Parker filed a three count complaint in federal district court alleging a hostile work environment based on sex under Title VII, retaliatory discharge for having exercised her rights under Title VII and discrimination based on sex since she was fired without having first received three warnings as required under RCS’s policies.

The federal district court dismissed the complaint, stating in part: “Clearly, this woman is entitled to the dignity of her merit-based promotion and not to have it sullied by somebody suggesting that it was because she had sexual relations with a supervisor who promoted her. But that is not a harassment based upon gender. It’s based upon false allegations of conduct by her.”

The court determined that the harassment was neither severe nor pervasive. And, since the harassment was not based on her sex, her belief that she complained about a violation of Title VII was not objectively reasonable. Thus, the retaliation claim failed as well. Finally, the discrimination claim was dismissed because, as to this claim, Parker had failed to exhaust her administrative remedies at the EEOC since it was not mentioned in the charge.

On appeal, RCS argued that the rumor was started by a coworker because he was jealous of Parker’s success, not because she is a woman. Therefore, the rumor was based on conduct, not sex. The appellate court was not buying this for one minute, stating:

[The rumor implied] that Parker used her womanhood, rather than merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception – one that unfortunately still persists – that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as ‘sluts’ or worse, prostitutes selling their bodies for gain.

***

… [T]raditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society…

Thus, the appellate court found the “conduct” alleged in this case to be gender-based.

The court also highlighted how only Parker was banned from the all-staff meeting when both she and Pickett were both late. Also, only Parker was ordered to stay away from Jennings when he complained, but he was allowed to enter Parker’s workspace and jeer and mock her. Finally, only Parker, the female member of the alleged sexual relationship, was disciplined while Pickett, the alleged male participant, was not.

Thus, the appellate court reinstated the hostile work environment claim. Because Parker’s complaint alleged a plausible hostile work environment, the retaliation claim was also reinstated. However, the dismissal of the discrimination claim was affirmed because it was not raised in the EEOC charge. The dissenting judge would have also reinstated this claim.

So, now you understand why there were nearly fifty amicus briefs filed in this case. Parker’s harassment was severe or pervasive and it had consequences. She did not simply endure a “few slights” as characterized by the lower court. Parker was fired. A jealous male co-worker started the rumor that Parker was “sleeping her way to the top” and it was perpetuated by other males, including Moppins, the highest ranking male in the facility. Parker had a door slammed in her face and was screamed at by Moppins. This rumor was humiliating, going “right to the core of somebody’s merit as a human being…”

I wonder if the Human Resources Manager was inexperienced, blind to the facts, or powerless to take the right action. Often it is the latter. Having a trusted relationship with an experienced employment attorney can often make the difference. An outside attorney can weigh in and support the advice being given by Human Resources and prevent an injustice such as the one that may have occurred here.

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. April 2019.

March Madness DOL-style Follow the flurry of activity at the Dept. of Labor

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By: Miriam L. Rosen, McDonald Hopkins PLC

 

March Madness DOL-style

Follow the flurry of activity at the Dept. of Labor

             While the rest of us were busy filling out our NCAA tournament brackets, the U.S. Department of Labor (“DOL”) was engaged in another kind of March Madness.  In a flurry of activity during the month of March, the DOL issued two notices of significant FLSA rulemaking along with three new Opinion Letters on FMLA and FLSA issues.

            If you were otherwise distracted by your – now busted – bracket, here’s a look at the DOL’s March 2019 activity.

  • Salary Level Threshold Rulemaking

            The DOL started the tournament….ah, rulemaking activity with a big announcement on March 7, 2019 proposing to modify the salary threshold for FLSA white-collar exempt status from the current level of $23,660 per year to $35,308 annually.  Here are the rule’s “highlights” from the DOL’s website:

  • The proposal increases the minimum salary required for an employee to qualify for exemption from the currently-enforced level of $455 to $679 per week (equivalent to $35,308 per year).
  • The proposal increases the total annual compensation requirement for “highly compensated employees” from the currently-enforced level of $100,000 to $147,414 per year.
  • Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10 percent of the standard salary level.
  • No changes to the job duties test.
  • No automatic adjustments to the salary threshold.

The public comment period for the proposed salary threshold rule is now open and runs until May 2019.

  • Regular Rate Rulemaking

            On March 28, 2019, the DOL advanced its agenda to the next round by announcing a proposed rule intended to clarify and update the FLSA’s “regular rate” requirements.

            The FLSA requires that nonexempt employees receive overtime pay at 1½ times their “regular rate of pay” for all hours worked over 40 in a workweek.  In a twist that often confuses employers, the “regular rate” is not always the same thing as an employee’s “hourly rate.”

            The difference between the “hourly” and the “regular rate” can occur because the regular rate actually includes “all remuneration for employment paid to, or on behalf of, the employee,” except specific  payments excluded by the FLSA.  The FLSA’s regulations on the regular rate spell out the types of payments employers must include in the “time and one-half” calculation when determining workers’ overtime rates. These include things like shift differentials and non-discretionary bonuses.  So, for example, an employee’s hourly rate will vary from the regular rate because additional pay from a non-discretionary attendance bonus is included in calculating the regular rate.

            Because determining what should be included in calculating the regular rate is sometimes difficult for employers, the DOL’s proposed rule on the regular rate is intended as clarification.  The proposed rule provides that employers may exclude the following types of payments from an employee’s regular rate of pay:

  • The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
  • Payments for unused paid leave, including paid sick leave;
  • Reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • Reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements;
  • Discretionary bonuses;
  • Benefit plans, including accident, unemployment, and legal services; and
  • Tuition programs, such as reimbursement programs or repayment of educational debt.

The proposed rule also includes additional clarification about other forms of compensation, including payments for meal periods, “call back” pay, and others.  The public comment period for the proposed regular rate rule is also open and runs for a 60 day period.

  • DOL Opinion Letters

            In between its rulemaking announcements, the DOL also found time to dispense some practical advice for employers looking for a little protection in the paint.   The DOL issued three new Opinion Letters on March 14, 2019.

  • FMLA Designation

            The DOL’s FMLA Opinion Letter addresses whether an employer can delay designating FMLA leave time when it learns that an employee’s absence qualifies for FMLA protection.  This situation may arise, for example, when an employer allows an employee to use accrued paid leave time before using FMLA leave time.

            The DOL called foul on delayed designation.  The Opinion Letter makes clear that employers cannot “delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.”  Rather, employers must start the clock on employees’ FMLA leave once they learn that an absence qualifies for federal protection.

  • FLSA and state law conflicts

            In this Opinion Letter, the DOL addressed which law applies when the FLSA conflicts with state or local wage and hour laws.  The DOL made its point by using a New York law as an example.  Under NY state law, residential janitors are excluded from state minimum wage and overtime requirements, but the FLSA does not have a similar exemption.

            After reviewing the tape, the DOL concluded that when a federal, state, or local minimum wage or overtime law differs from the FLSA, the employer must comply with both laws and meet the standard of whichever law gives the employee the greatest protection.   In the example, New York requirements do not cover residential janitors, but the FLSA does. Accordingly, a New York employer must adhere to the FLSA’s minimum wage and overtime requirements because it provides the employee the greatest protection.

  • Employer-Sponsored Volunteering

In the third Opinion Letter issued on March 14th, the DOL addressed employer compensation practices for employees who participate in employer-sponsored volunteer programs. Because the FLSA is intended to protect employee pay, employer-sponsored volunteer programs are subject to scrutiny to ensure that the “volunteer” hours are not really a form of uncompensated hours worked.  The DOL recognized that hours spent on volunteer programs that are both charitable and truly voluntary are noncompensable.   The DOL concluded, however, that programs that are required or where the employer directs or controls the “volunteer work” are not truly charitable and voluntary. In those situations, the employee must be compensated for the “volunteer” time.

To avoid making volunteer work compensable, employers should have a solid game plan in place based on comments in the Opinion Letter:  Participation should be truly voluntary, not required (make it clear in writing); the employer should not direct and control the volunteer work; and employees who do not volunteer should not suffer adverse consequences.

  • The Tournament and the DOL’s Activity Continue

            As we head into April, four teams have “punched their tickets” to the Final Four and the DOL still appears to be caught up in the frenzy.  On April 1, 2019, the DOL issued new proposed rulemaking on the joint employer standard.    Then, on April 2, 2019, the DOL issued three more Opinion Letters.

            Talk about March Madness DOL-style!    And…Go Green!

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

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 2019.

American Society of Employers (ASE) releases 2019 Starting Salaries for Co-op Students and Recent College Graduates Survey

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By: American Society of Employers

 

American Society of Employers (ASE) releases 2019 Starting Salaries for Co-op Students and Recent College Graduates Survey

 

30% of organizations have increased their efforts to recruit new college graduates in 2019.

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

Livonia, Mich. —March 26, 2019 — The American Society of Employers (ASE), one of the nation’s oldest and largest employer associations, released the organization’s 2019 Starting Salaries for Co-op Students and Recent College Graduates Survey today. The annual survey provides a comprehensive look at the current state of wages and benefits provided to co-op students and recent college graduates.  The survey also presents employers a snapshot of the recruitment and retention trends associated with these new entrants to the workforce.

Mary E. Corrado, ASE President and CEO, stated, “The data shows that college graduates have higher expectations for career growth and work environment than they do for compensation.  Employers must realize that it takes more than fair and competitive compensation to create an engaging employee experience and retain these new workers.”

115 companies responded to the 2019 Starting Salaries for Co-op Students and Recent College Graduates Survey.  The majority (76%) of the respondents have under 500 employees.  Just over 80% of respondents are located in the metro Detroit region with 51.3% of those classified as automotive suppliers.

2019 Starting Salaries for Co-op Students and Recent College Graduates Survey Highlights:

  • Nearly three out of four (74%) respondents say their company has hired, or plans to hire, a recent college graduate in 2019, similar to what was reported in 2018.
    • 30% of the companies have increased their hiring efforts for college graduates this year compared to last year, an increase of 7% from 2018.
  • The data suggests that the top five in-state institutions Michigan organizations actively recruit from are: 1) University of Michigan; 2) Michigan State University; 3) Oakland University; 4) Lawrence Technological University; 5) Kettering University.
  • The top three most popular technical Bachelor-degree disciplines hired in the past year were: 1) Mechanical Engineering; 2) Electrical Engineering; 3) Computer Science.
  • The top three most popular non-technical Bachelor-degree disciplines hired in the past year were: 1) HR/Labor Relations; 2) Finance; 3) Accounting
  • The top three knowledge/skill factors organizations consider when making hiring decisions, in order, are: related coursework; computer skills; and internship/work experience.
  • The top three perceived shortcomings of recent college graduates are: 1) career expectations (62%); 2) adaptation to work environment (60%); 3) compensation expectations (53%).
  • Of the six disciplines named above (Accounting, Finance, HR/Labor Relations, Mechanical Engineering, Electrical Engineering, and Computer Science) the highest starting salaries went to the engineering disciplines.  The average starting salary for Electrical Engineering was $68,330; and for Mechanical Engineering the average was $66,305.  Finance came in at $53,981; Computer Science $53,445; HR/Labor Relations $49,144, and Accounting came in at $44,646.
  • Pay rates for high school and college co-ops and interns were separated by technical and non-technical roles; the average hourly rate for a college senior in a technical field is $17.84 an hour and $16.20 for a non-technical field; the average hourly rate for a college junior in a technical field is $16.72 an hour and $15.17 for a non-technical field.

Pricing

  • This survey is available free of charge to ASE members and for $525 to non-members.

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

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American Society of Employers (ASE) Welcomes Four New Board Members

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By: American Society of Employers (ASE)

 

American Society of Employers (ASE) Welcomes Four New Board Members

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

Livonia, Mich. —March 26, 2019 — The American Society of Employers (ASE), one of the nation’s oldest and largest employer associations, has added four new members to their Board of Directors for 2019.  One member resigned.

New Board Members

  • Elliott Forsyth, Vice President, Business Operations, Michigan Manufacturing Technology Center
  • Laura A. Jones, HR Director, Global Cadillac, General Motors
  • Ron Moran, Vice President, Ghafari Associates, LLC
  • Sarah Orwig, Director, HR Business Operations, Product Development, Ford Motor Company

Board Member Resignation

  • Neil Marchuk, Executive Vice President of Human Resources, Arconic, Inc.

The changes were announced by ASE President & CEO Mary E. Corrado.  “ASE is pleased to welcome these highly regarded new board members. Their breadth of knowledge and experience will help ASE continue to grow as we have for 117 years,” stated Corrado.

In addition to the board changes, Sandy Selewski, Chief Human Resources Officer at Zeal Credit Union joined the American Society of Employers Educational Foundation Board of Trustees.

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

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.

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