Cross joins Plunkett Cooney’s Torts & Litigation Practice Group

DATE:  March 24, 2020 

CONTACT:  John E. Cornwell (248) 901-4008

BLOOMFIELD HILLS, Mich. – March 24, 2020 – Matthew W. Cross recently joined Plunkett Cooney, one of the Midwest’s oldest and largest full-service law firms, as a member of its Torts & Litigation Practice Group.

Cross, who is an attorney in the firm’s Petoskey, Michigan office, will handle insurance defense litigation. These matters include premises liability, municipal liability, employment disputes and personal injury claims.

In addition to his litigation defense practice, Cross has experience representing individuals and businesses on an array of matters, including contract disputes, real property litigation, and business formation.

A member of the State Bar of Michigan since 2013, Cross belongs to the Michigan Association of Municipal Attorneys and serves as regional chairperson of the Michigan Defense Trial Counsel. He received his law degree from Wayne State University Law School in 2013 and his undergraduate degree, magna cum laude, from Ferris State University in 2008.

Plunkett Cooney’s Torts & Litigation Practice Group features the collective talents of attorneys who focus on the defense of all manner of civil litigation, including construction disputes, motor vehicle negligence, liquor liability, retail liability, toxic torts and premises liability, including slip and falls, trip and falls and open and obvious dangers.

Established in 1988, Plunkett Cooney’s Petoskey office is home to eight attorneys and their support staff, who provide litigation, business and personal legal services. These areas of practice include estate planning, banking, real estate transactions, medical malpractice, product liability, premises liability, motor vehicle negligence and No-Fault Law, labor and employment law, and workers’ compensation.

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 seven 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 selected by Crain’s Detroit Business as its inaugural Law Firm of the Year.

For more information about Matthew Cross joining Plunkett Cooney’s Torts & Litigation Practice Group, contact the firm’s Director of Marketing and Business Development John Cornwell at (248) 901-4008; jcornwell@plunkettcooney.com.

Detroit SHRM Webinar: Engaging Virtual Teams

DETROIT SHRM EVENT SUMMARY FORM

TYPE OF PROGRAM: Webinar

DATE/TIME OF EVENT: TUESDAY, MARCH 31, 2020 11:30 AM – 12:30 PM

PROGRAM TITLE:  Engaging Virtual Teams

SESSION DESCRIPTION: We have a need now more than ever to serve our virtual workforce. This session will be a collaborative discussion about how we lead employees to be successful in their new environment. We will discuss the research and give you a platform to share best practices.

LEARNING OBJECTIVES: Upon completion of the webinar, C-Suite executives and HR professionals will gain a better understanding of how to:

● Utilize best practices to engage a virtual team.

● Implement and discuss tactics of working virtually.

● Build trust in the virtual setting with team members.

● Enhance leadership practices for a remote environment.

● Improve communication approach when working virtually.

PRESENTER:

Kara Kirby is a Principal Organizational Effectiveness Consultant at Ultimate Software. She has spent her 15-year career as a careful observer and student of employee engagement. She started her career with a high growth tire company that provided vast experience in the automotive industry, tire business, consultation and adult learning. She came to Ultimate 5 years ago to build and implement a comprehensive leadership development program for employees starting their leadership journey and for those refining their practice. In that time, she led teams focused on employee experience and talent development. Kara holds a Bachelor’s in Psychology degree from Texas State University and a Masters of Science in Organizational Development degree from Queens University of Charlotte. She is passionate about helping people realize their potential and solving complex organizational problems through the collective intelligence of their people.

Kara currently resides in Cary, NC with her husband and two sons who have recently turned into very needy, highly distracting coworkers.

To learn more about Kara, you can visit her LinkedIn profile: https://www.linkedin.com/in/kara-kirby-msod-46632711/

HRCI CREDITS: Submitted for approval for 1.0 general credits

Cost: No Charge.

Registration (and pre-payment ) is required in advance HERE; For questions – please contact (248) 478-6498

EFFECTIVE TODAY – – Oakland County Emergency Order Requires Health Screening of Employees and Social Distancing Policy

By: Claudia D. Orr, Plunkett Cooney

Yesterday, Oakland County Executive David Coulter announced that the Oakland County Health Division had issued an emergency order that requires the essential businesses in Oakland County to screen all employees for illness and risks related to exposure to the Coronavirus. In addition to screening questions, employers are asked to take each employee’s temperature if a touchless thermometer is available.

Employees who disclose that they have had any of the COVID-19 symptoms (fever, cough, shortness of breath, sore throat, diarrhea) or, within the last 14 days, have either had close contact with someone who has been diagnosed with the Coronavirus or traveled (internationally or domestically) must be excluded from the workplace for:

            (a) 3 days with no fever and 7 days since the first symptom,

            (b) 14 days if they had close contact with someone diagnosed with the virus, and

            (c) 14 days following their travel.

All employers in Oakland County who still have employees coming to the workplace must also develop a plan that manages physical distancing of at least 6 feet with coworkers and for customers who are waiting in lines for service. These plans must limit capacity in facilities that will provide for this social distancing which will include such things as signage, limits on entrance to facility and any specialized hours.

The order must be posted at the entrance to the facility and published to the public. The order takes effect at noon March 25, 2020 and runs through April 13, 2020.

Employers in other counties should expect that similar orders will be issued by their county health departments in the near future.

Oakland County employers need to develop a questionnaire documenting their screening efforts and a policy that complies with the above directive. If you need assistance, contact an experienced employment attorney, 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) 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. March 2020. 

DOL Provides Q & A Style Guidance on Families First Coronavirus Response Act / FFCRA is effective April 1, 2020

By:  Miriam L. Rosen, McDonald Hopkins

Signed on March 18, 2020, the Families First Coronavirus Response Act (FFCRA) generally requires that employers with fewer than 500 employees provide eligible employees with up to 80 hours of emergency paid sick leave (EPSL) for specified COVID-19 related reasons.  The law also requires these employers to provide up to 12 weeks of FMLA leave for childcare reasons related to COVID-19 school closings.

For many employers, what has followed since March 18th are questions and more questions about coverage, notice, use, and other basic compliance requirements of the FFCRA.  On March 24th, the DOL issued a Q & A-style Guidance that answers some question, but leaves many more unanswered just a week before the FFCRA is to be effective.

The DOLs Questions & Answers

FFCRA Effective Date.   Significantly, the DOL has stated that the FFRCA is effective on April 1, 2020 and applies to leaves beginning on that date.  This differs from the expected effective date of April 2nd

  1. What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act?

The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

Determining Employer Coverage. Employers have also had questions about how to determine if they are an employer with 500 or fewer employees – especially if the company is a subsidiary of a larger parent. In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA.  The factors for that test include: (i) Common management; (ii) Interrelation between operations; (iii) Centralized control of labor relations; and (iv) Degree of common ownership/financial control.

  1. As an employer, how do I know if my business is under the 500-employee threshold and therefore must provide paid sick leave or expanded family and medical leave?

You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States. In making this determination, you should include employees on leave; temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship). Workers who are independent contractors under the Fair Labor Standards Act (FLSA), rather than employees, are not considered employees for purposes of the 500-employee threshold.

Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

  1. If I am a private sector employer and have 500 or more employees, do the Acts apply to me?

No. Private sector employers are only required to comply with the Acts if they have fewer than 500 employees.

Small Employer Exemption.      Employers with fewer than 50 employers have asked what they will need to show to establish that complying with the FFCRA will jeopardize their business. The DOL responded as follows to that question:

If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.

You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

Counting hours worked and calculating pay:  The DOL’s guidance answers various questions related to hours worked and pay issues related to the emergency paid sick time benefit and the paid FMLA:

  1. How do I count hours worked by a part-time employee for purposes of paid sick leave or expanded family and medical leave? A part-time employee is entitled to leave for his or her average number of work hours in a two-week period. Therefore, you calculate hours of leave based on the number of hours the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, you may use a six-month average to calculate the average daily hours. Such a part-time employee may take paid sick leave for this number of hours per day for up to a two-week period, and may take expanded family and medical leave for the same number of hours per day up to ten weeks after that.

If this calculation cannot be made because the employee has not been employed for at least six months, use the number of hours that you and your employee agreed that the employee would work upon hiring. And if there is no such agreement, you may calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

  1. When calculating pay due to employees, must overtime hours be included?

Yes. The Emergency Family and Medical Leave Expansion Act requires you to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week.

However, the EPSL Act requires that paid sick leave be paid only up to 80 hours over a two-week period. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80.

If the employee’s schedule varies from week to week, please see the answer to Question 5, because the calculation of hours for a full-time employee with a varying schedule is the same as that for a part-time employee.

Please keep in mind the daily and aggregate caps placed on any pay for paid sick leave and expanded family and medical leave as described in the answer to Question 7.

Please note that pay does not need to include a premium for overtime hours under either the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act.

  1. As an employee, how much will I be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?

It depends on your normal schedule as well as why you are taking leave.

If you are taking paid sick leave because you are unable to work or telework due to a need for leave because you (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, you will receive for each applicable hour the greater of:

  • your regular rate of pay,
  • the federal minimum wage in effect under the FLSA, or
  • the applicable State or local minimum wage.

In these circumstances, you are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period.

If you are taking paid sick leave because you are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, you are entitled to compensation at 2/3 of the greater of the amounts above.

Under these circumstances, you are subject to a maximum of $200 per day, or $2,000 over the entire two week period.

If you are taking expanded family and medical leave, you may take paid sick leave for the first ten days of that leave period, or you may substitute any accrued vacation leave, personal leave, or medical or sick leave you have under your employer’s policy. For the following ten weeks, you will be paid for your leave at an amount no less than 2/3 of your regular rate of pay for the hours you would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, you will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when you are on leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

To calculate the number of hours for which you are entitled to paid leave, please see the answers to Questions 5-6 that are provided in this guidance.

  1. What is my regular rate of pay for purposes of the FFCRA?

For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[2] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.

If you are paid with commissions, tips, or piece rates, these wages will be incorporated into the above calculation.

You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

Eligibility and Use of Emergency Paid Sick Leave Act.  A number of questions addressed how employees can use the new paid leave requirements and how the two benefits interrelate.  For some employers that would like to take a tax credit for paid time off provided prior to April 1st, the Guidance indicates that the benefits are not retroactive and prior benefits do not count towards time owed as of April 1st. The eligibility and use questions and answers follow below:

  1. May I take 80 hours of paid sick leave for my self-quarantine and then another amount of paid sick leave for another reason provided under the Emergency Paid Sick Leave Act?

No. You may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours for which you receive paid sick leave is capped at 80 hours under the Emergency Paid Sick Leave Act.

  1. If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact?

You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.

Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

  1. Can my employer deny me paid sick leave if my employer gave me paid leave for a reason identified in the Emergency Paid Sick Leave Act prior to the Act going into effect?

No. The Emergency Paid Sick Leave Act imposes a new leave requirement on employers that is effective beginning on April 1, 2020.

  1. Is all leave under the FMLA now paid leave?

No. The only type of family and medical leave that is paid leave is expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act when such leave exceeds ten days. This includes only leave taken because the employee must care for a child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

  1. Are the paid sick leave and expanded family and medical leave requirements retroactive?

No.

  1. How do I know whether I have “been employed for at least 30 calendar days by the employer” for purposes of expanded family and medical leave?

You are considered to have been employed by your employer for at least 30 calendar days if your employer had you on its payroll for the 30 calendar days immediately prior to the day your leave would begin. For example, if you want to take leave on April 1, 2020, you would need to have been on your employer’s payroll as of March 2, 2020.

If you have been working for a company as a temporary employee, and the company subsequently hires you on a full-time basis, you may count any days you previously worked as a temporary employee toward this 30-day eligibility period.

While the DOL’s questions are a helpful start, employers continue to have questions about basic compliance issues that are not yet addressed.  The link to the Guidance is:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. The DOL has indicated that regulations are coming.

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. March 2020.

 

COVID-19 Bill with FMLA leave and sick pay provisions passed by House and moves to Senate

By: Miriam L. Rosen, McDonald Hopkins

In response to the unprecedented impact of the Coronavirus (COVID-19), on March 14, 2020 the  U.S. House of Representatives passed the Families First Coronavirus Response Act, which is intended to provide a broad range of assistance to businesses and individuals.  Specifically, for employers and employees, the bill includes measures that will expand the FMLA and provides for emergency paid leave for employers of 500 or fewer employees. The bill would extend these protections through the end of 2020.

Before the bill even made it to the Senate, the House amended it to make “technical corrections” on March 16th scaling back on some of the benefits in the initial bill.    President Trump has already indicated his support.  While some changes in the Senate are likely, once the legislation is passed employers will need to ramp up quickly.  Employers should take time now to become familiar with the parameters of this legislation.

 Expansion of FMLA to COVID-19 Leaves.

Notably, the bill expands the FMLA’s time off rights of up to 12 weeks of leave to encompass a “Public Health Emergency Leave” (referred to here as “FMLA-C19” leave).   The FMLA-C19 leave is available for a broader group of employees and for specific COVID-19 related reasons.

The summary below covers the bill as amended on March 16th and includes the following changes to the scope of the FMLA:

    1. Covered employers. Significantly, an employer that employs “fewer than 500 employees” is a “covered employer” for purposes of FMLA-C19 leave.  In contrast, the FMLA applies to employers with 50 or more employees.
    1. Eligible employees. An employee employed for a least 30 day is eligible for the FMLA-C19 leave rights. This is in contrast to the FMLA which requires 12 months of employment for FMLA coverage.
    1. Expanded family member definition. The original bill included an expanded definition of parent  as well as coverage for next of kin and grandparents in the definition of family member.  Those provisions were eliminated in the amendment.
    1. Reasons for FMLA-C19 Leave.  FMLA-C19 leave is available for the following reasons:
      • To follow a requirement or recommendation to quarantine due to exposure to or symptoms of coronavirus;
      • Leave to care for a family member who is under a coronavirus-related quarantine;
      • Leave to care for an employee’s minor son or daughter if the school or childcare is closed, or the childcare provider is unavailable related to coronavirus;
    1. Pay for FMLA-C19.

            Under the amended bill, the first 10 days of any FMLA-C19 leave may be unpaid, but available     employer provided paid leave may be used.   

            Significantly, after the first 10 days of FMLA-C19 leave, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay for childcare reasons only. Paid FMLA leave is capped at $200 per day or $10,000 in the aggregate.

    1. Notice Requirement. The bill provides that an employee will provide the employer with as much “notice of leave as is practicable.”
    1. Job Restoration. Employers with 25 or more employees must restore an employee to the same or similar job following any FMLA-C19 leave.
    1. Tax Credit for Wages. A refundable tax credit will be available for employers equal to 100% of qualified wages required to be paid for the Emergency FMLA-C19 leave for each calendar quarter.

Remember, as of this posting, this legislation is still pending.  If passed and signed by the President, the provisions will take effect in no later than 15 days and would end on December 31, 2020.

Emergency Paid Sick Leave Time for Affected Employees

The original legislation provided for 80 hours of emergency paid sick time for full-time employees (pro-rata for part-time employees) for their own COVD-19 related reasons and  2/3rd pay to care for a family member.

The amendment now provides for emergency paid leave for employees who are unable to work or telework for the following reasons:

Reasons for Sick Leave

    1. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
    2. a health care provider has advised the employee to self-quarantine because of COVID-19;
    3. the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
    4. the employee is caring for an individual subject or advised to quarantine or isolation;
    5. the employee is caring for a son or daughter whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 precautions; or
    6. the employee is experiencing substantially similar conditions as specified by the Secretary of HHS, in consultation with the Secretaries of Labor and Treasury.

Amount of Pay of Sick Leave

The amendment also caps paid leave at $511 per day ($5,110 in total) where leave is taken for the employee’s own illness or quarantine and $200 per day ($2,000 in total) where leave is taken for caring for others or school closures.

Use of Emergency Paid Time

    1. Sequencing.  The bill provides that an employee can first use the emergency paid sick time before using other paid time off provided by an employer.
    1. Coordination with existing policies. Importantly, if an employer already offers paid sick leave to its employees, emergency paid sick leave must be in addition to the already-existing leave. An employer cannot amend its sick leave policy to avoid offering additional leave.
    1. No discrimination or retaliation. The bill also prohibits discrimination or retaliation against an employee for taking a coronavirus-related leave.
    1. Tax credit. Finally, to help defray the cost of the paid leave, the bill makes available a tax credit equal to 100% of sick leave wages paid by an employer.

Unemployment Benefits Expanded 

The bill also provides for emergency grants to states for activities related to processing and paying unemployment insurance (UI) benefits, under certain conditions, including requiring employers to provide notice of potential UI eligibility to laid-off workers.

As noted above, the Senate will consider this legislation this coming week.  Although the broad parameters of the bill are likely to remain in place, we will continue to provide updates as some changes from the Senate should be anticipated.

Once signed, the law would be effective within 15 days and will require employers to take quick action to comply, including with required workplace postings and new or amended FMLA, leave of absence, and sick time or paid time off policies. Your employment law attorney can assist your organization in understanding and complying with this pending law.

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. March 2020.

Zapczynski joins Plunkett Cooney’s Transportation Law Practice Group

DATE: March 13, 2020
CONTACT: John E. Cornwell (248) 901-4008

Bloomfield Hills, MI — March 13, 2020 — Attorney Jesse A. Zapczynski recently joined the Transportation Law Practice Group of Plunkett Cooney, one of the Midwest’s oldest and largest full-service law firms.

A member of the firm’s Bloomfield Hills office, Zapczynski focuses his practice on the defense of first- and third-party auto liability, bodily injury, and uninsured and under insured motorist cases on behalf of national insurance companies and their policyholders. Additionally, he has significant experience with ERISA plans and other healthcare coverage potentially affecting these matters, as well as extensive experience investigating and resolving fraudulent motor vehicle liability claims.

Admitted to practice in state and federal courts in Michigan, Zapczynski is a member of the Michigan Defense Trial Counsel and the State Bar of Michigan. He is a 2010 cum laude graduate of Western Michigan University Cooley Law School and a 2007 graduate of Michigan State University.

Plunkett Cooney’s Transportation Law Practice Group includes the talents of more than 30 attorneys who provide an array of litigation and risk management services, including expertise in the areas of trucking liability, first- and third-party auto liability, cross-border claims with Canada, fraud investigation services and emergency accident  response.

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 seven Michigan cities, Chicago, Illinois, Columbus, Ohio and Indianapolis, Indiana. Plunkett Cooney has achieved the highest rating (AV) awarded by MartindaleHubbell, a leading, international directory of law firms. The firm was also selected by Crain’s Detroit Business as its inaugural Law Firm of the Year.

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

Accommodations Under the ADA – Are You Doing It Right?

 By:  Claudia D. Orr, Plunkett Cooney

 

As you may know, the United States Court of Appeals for the Sixth Circuit has become more pro-employee over the last decade or so much to my disappointment. So when I saw a new published decision by the appellate court that focused on the Americans with Disabilities Act, I was fairly certain how it would come out.  Unfortunately for employers, I was right. Let’s look at the case.

Fisher v. Nissan North America, Inc. is a case that arose out of the Middle District of Tennessee. In 2003, plaintiff Michael Fisher began working for Nissan as a production technician attaching doors, hoods and trunks on vehicles as they pass by on the production floor. He generally received positive performance reviews and one noted that he had a great attitude.

Unfortunately, Fisher’s kidney function had declined by 2015. When Fisher requested a transfer to an easier position, his supervisor responded “I could put you somewhere, but it ain’t for this kind of stuff. You just need to go on, go on out.” So, that is what Fisher did. He “went on out” on an extended leave of absence drawing long term disability pay.

But, there is a happy twist to the story. Fisher received a kidney transplant in Aug. 2016. While he still felt sick and fatigued, his long term disability pay was running out and Nissan’s human resources department warned him that if he was not able to extend his leave, his job would end. He was also warned that he would not be permitted to return with restrictions. At Fisher’s prompting, his physician cleared him to return to work on Monday, Oct. 17, 2016.

Fisher was returned to work in a position that everyone thought would be easier, but it wasn’t. When he asked if he could take extra breaks or work half time, Nissan refused. Fisher asked his supervisor if he could transfer to another position and was told “yes, maybe, you know, we’ll see.” Clear as mud.

Just three days later, Fisher’s physician had a change of heart and wrote Nissan indicating that Fisher was risking his health and needed at least another month off to build up his strength, and that ideally he would be returned working half-time before returning to full-time work. Thus, before the transfer request was decided, Fisher was granted additional leave.

In late November, Fisher was cleared to return to work before his extended leave ended. Nissan was asked to provide frequent bathroom breaks to prevent damage to the new kidney. Also, because Fisher still hadn’t acclimated to the anti-rejection medicines, he suffered flu-like symptoms and needed time off for doctor’s appointments. He began to miss work and was disciplined for his absences.

Each time he was disciplined, Fisher described the transplant and the symptoms he suffered and requested accommodation, including a transfer to an easier job. His supervisor expressed sympathy but added “my hands are tied.” Fisher was denied working half-time and, because Nissan made such a big deal about the bathroom breaks, he eventually stopped requesting them.

On Feb. 3, 2017, Fisher was issued a final warning. Fisher claimed one of the human resources representatives stated the following during that meeting:

Nissan needed restrictions, not suggestions, and Fisher responded that he had not been permitted to return to work with restrictions. The representative “went ballistic” and said that Fisher could not “just be going home for a stomachache.” According to Nissan’s notes from the meeting Fisher said that the company was “not willing to work with [him]” and requested “another job.” Human resources asked, “If you cannot come to work, what will moving you to another job accomplish?” Fisher responded, “Let’s do it and we’ll see.”

There was no further discussion concerning a possible transfer. Instead Fisher received the final warning. Lesson number one: no matter how frustrated management becomes with an employee’s medical issues and absenteeism, it can never be displayed to the employee. Comments, demeanor, and tone will all be interpreted by the employee and used against the company.

As Fisher left the meeting, “a representative told Fisher that he had never ‘seen anybody come back’ from a final written warning.” I guess it’s unnecessary for me to discuss lesson number two.

Fisher left the building without telling anyone, including his supervisor, and never returned. A week later he was fired for absenteeism.

I don’t know about you, but I immediately thought Fisher’s actions equated to job abandonment. He walked off the job and then there were several days of no call, no show, right? But read on.

Fisher filed a lawsuit claiming, among other things, that Nissan failed to accommodate his disability. The district court granted Nissan’s motion to dismiss and Fisher appealed.

The appellate court reversed. It explained that when the plaintiff is claiming a failure to accommodate, the claim necessarily involves direct evidence of discrimination. Nissan argued against such a per se rule, noting that it would go against numerous previously published opinions of the appellate court. The court rejected that argument stating that all of those cases were wrong because they had all relied on a case decided under the Rehabilitation Act.

For failure to accommodate claims, the plaintiff must show: (1) he has a disability, and (2) that he is “otherwise qualified” for the job at issue despite the disability: (a) without accommodation, (b) with an “alleged” essential job requirement eliminated, or (c) with a reasonable accommodation. The court emphasized that Nissan had to prove (1) that the essential job requirement at issue was in fact essential (and therefore a business necessity), or (2) that the proposed accommodation would be an undue hardship.

Here’s one of the problems with a per se direct evidence rule: while an employer may use a legitimate, nondiscriminatory reason as a “shield” when indirect evidence of discrimination is required, “such a ‘neutral policy is of no moment’ under the direct test.”

The appellate court explained that a school lacking an elevator could not deny a teacher with mobility problems classes on the first floor and then fire the teacher for being late to classes on the second floor. Ok, that makes sense.

But I still have a beef with the court’s analysis. What about no call/no show and walking off the job without telling his supervisor? There is no discussion about this in the court’s opinion, but Fisher’s failure to follow these rules seems unrelated to his disability and sounds like a lawful reason for discharge. Rather than terminating Fisher for attendance, perhaps his voluntary resignation should have been accepted following his job abandonment. But, we don’t know whether Nissan had the right rules in place to do this.  This may be lesson number three.

The court indicated that there were three potential accommodations that could have assisted Fisher with his return to full-time employment (a transfer to an easier job, extra breaks, or a temporary part-time schedule). On remand, the focus may be on whether there were other vacant positions that Fisher was qualified to perform that would have better accommodated his condition and, if so, whether assigning him to such position was an undue hardship.

The court also discussed the ADA’s “mandatory” interactive process. “If the interactive process was triggered [by the employee’s request for an accommodation] but not successfully resolved, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.’”

The court found Nissan’s initial attempts to be in good faith. It initially assigned Fisher to a different job that was thought to be easier and granted him more leave when he discovered he was not ready to return to work. But, when he returned to work, still struggled and suggested he should be transferred again, Nissan dropped the ball. Thus, the appellate court found that Nissan was not entitled to summary judgment of the failure to accommodate claim.

As a general rule, the party who fails to engage in this process in good faith will lose. Lesson number four: Employers should always propose counter-solutions during the interactive process and not just say no to what is being requested. Nor should an employer ever decide what it will and will not do before sitting down and talking with the employee.

Finally, keep in mind, it is not one and done. Medical conditions change and accommodation outcomes are not always successful. Sometimes further discussions and different accommodations need to be tried. Be flexible.  Be creative.

But, employers also have some rights. An employer has the right to receive some basic information including (1) a confirmation of the medical condition/disability (if not obvious and if not otherwise already disclosed in other documentation such as disability insurance paperwork), (2) the affect and extent of the medical condition on the employee’s ability to perform major life activities and/or his major bodily systems, (3) whether the  employee has the ability to perform the essential functions of the job (with or without reasonable accommodation), and (4) whether accommodation is needed and, if so, for how long.  Other questions may be appropriate depending on the circumstances, but the Equal Employment Opportunity Commission has indicated that using the same questionnaire all the time will violate the ADA.  The questions posed should be appropriate to the circumstances.

One of the federal circuits has taken the position in the last year or so that providing a leave of absence is not reasonable accommodation because the ADA is intended to assist the employee in doing his job, and not to avoid the job altogether. That is not the Sixth Circuit’s position, but perhaps one day the Supreme Court will weigh in on the issue. Until it does, generally speaking, employers in the Sixth Circuit (Kentucky, Tennessee, Ohio and Michigan) with 15 or more employees must provide an employee with a leave of absence as long as it is medically necessary until the employer can show it causes an undue hardship. Incidentally, “undue hardship” is far more than an inconvenience and, the larger the employer and more resources and employees it has, the more difficult it is to demonstrate.

The ADA presents some of the most complex legal issues facing employers today. If you need assistance with issues under the Americans with Disabilities Act, contact an experienced employment attorney, 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) 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. March 2020.

Driver’s Licenses Valid for I-9 Purposes Despite Real ID Noncompliance

By: Alexandra LaCombe, Jackson Lewis, P.C.

 

At a glance

Since 2013, a growing number of states have been issuing driver’s licenses in one form or another to undocumented workers.  Although Michigan is not currently one of these states, Michigan employers need to be aware of their responsibilities when a new hire is presenting a noncompliant license for I-9/employment verification purpose once REAL ID law goes into effect.

Background

The Trump Administration has been conducting “a department-wide study of the effects of issuing state driver’s licenses to undocumented immigrants.” Department of Homeland Security spokesperson said that the study is tied to matters of national security, citing the Administration’s concern that the licensing laws “make it easier for terrorists and criminals to obtain fraudulent documents.”

Driver’s licenses issued to undocumented immigrants will not be REAL ID compliant. The REAL ID law, which will go into full effect on October 1, 2020, establishes security standards for the issuance of driver’s licenses and other identification that are needed to enter federal facilities, nuclear power plants and to board airlines – even for domestic flights.  In order to obtain a REAL ID compliant driver’s license, an individual must, among other things, have legal status in the United States. Under the REAL ID regulations, states may continue to issue licenses that are not REAL ID compliant but they must be marked prominently with annotations such as “not for federal identification purposes” or “driving only.”

Most of the states that are issuing “driving only” licenses have large populations of undocumented immigrants.  Because undocumented immigrants will still have to pass all required driving tests, state authorities believe that licensing these individuals yields safer drivers.  In this case, the state and federal laws are aimed at achieving different objectives—with employers facing potentially conflicting information.

What it means for employers

Under current guidelines, licenses marked for driving purposes only should still be accepted as List B/identification documents for Form I-9 and E-Verify purposes if they meet the regulatory requirements — contain a photograph or information such as name, date of birth, gender, height, eye color, and address.  As the REAL ID deadline approaches, employers need to be vigilant regarding further updates on this issue.

If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 936-1929 or alexandra.lacombe@jacksonlewis.com.  Alexandra is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Jackson Lewis, P.C.

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. March 2020

Plunkett Cooney Elects Board of Directors Members, Officers

DATE:  March 9, 2020
CONTACT:  John E. Cornwell (248) 901-4008

 

BLOOMFIELD HILLS, Mich. – March 9, 2020 – At the recent annual meeting of Plunkett Cooney – one of the Midwest’s oldest and largest law firms – three shareholders were elected by their colleagues to serve three-year terms as members of the board of directors. David R. Stechow was elected for the first time while Audrey J. Forbush and Scott K. Lites were re-elected.

In addition, the firm is pleased to announce that shareholders Michael S. Bogren, Michael P. Ashcraft Jr. and Forbush were re-elected by the members of the board of directors to one-year terms as chairman, secretary/treasurer and senior vice president, respectively.

Stechow, who serves as Co-leader of the firm’s Construction Law Practice Group, has successfully litigated both jury trials and arbitrations on behalf of builders, contractors, management companies, manufacturers and suppliers. A member of the firm’s Detroit office, he received his law degree in 1996 from the University of Detroit Mercy School of Law and his undergraduate degree in 1992 from Michigan State University. A member of the Oakland County Bar Association, the State Bar of Michigan and the Steering Committee of ALFA International’s Construction Group, Stechow was selected in 2010 as a Fellow of the Litigation Counsel of America, an honorary trial lawyer society comprised of less than one-half of one percent of American lawyers.

The managing partner of Plunkett Cooney’s Flint office and Co-leader of the firm’s Governmental Law Practice Group, Forbush focuses her practice in the areas of municipal and medical liability. She has particular expertise representing municipalities in police liability matters. Forbush is a member of the public corporation section of the Michigan and Genesee County bar associations, and she serves as legal advisor to the Law Enforcement Action Forum, an organization consisting of select law enforcement executives throughout Michigan. Forbush received her law degree, magna cum laude, from Western

Michigan University Cooley Law School in 1988 and her undergraduate degree from Central Michigan University in 1984.

Lites, who is a member of the firm’s Bloomfield Hills office, is one of the firm’s most accomplished business attorneys with over 30 years of experience representing clients in their acquisition, financing, investment, development and disposition activities. He routinely negotiates and closes multi-million dollar financial transactions, real estate development projects and franchise agreements. He also has the distinction of having served as special counsel to a Michigan-based public employee pension system and as an appointed member of the state of Michigan’s Receivership Transition Advisory Board for the City of Allen Park. Lites received his law degree in 1985 from the University of Detroit School of Law and his undergraduate degree in 1982 from the University of Michigan.

A member of the firm’s Grand Rapids office, Bogren has been a member of the firm’s board of directors since 2003, serving as chair since 2012. He is a member of Plunkett Cooney’s Governmental Law Practice Group, and he has extensive experience representing municipalities in both state and federal courts in police liability claims, First Amendment law, due process claims, Open Meetings Act claims, FOIA claims, zoning matters, civil rights cases and employment litigation. A 1982 cum laude graduate of University of Detroit School of Law, Bogren is a member of the Public Corporations Section of the State Bar of Michigan, the American Bar Association and the Civil Rights Section of the Federal Bar Association. He received his undergraduate degree, cum laude, from Western Michigan University in 1979.

Ashcraft, who serves as a Co-leader of Plunkett Cooney’s Professional Liability Practice Group, concentrates his practice on the defense of attorneys, accountants, and their firms on professional liability and responsibility matters. A partner in the firm’s Bloomfield Hills office, he also represents insurance brokers and agents, securities brokers, real estate brokers and agents, investment advisors, officers and directors, and notaries public in professional liability cases in state and federal courts. Ashcraft graduated, cum laude, from Michigan State University College of Law in 1992, and he received his undergraduate degree from the University of Michigan in 1987. He is a member of the American Board of Trial Advocates, the Oakland County Bar Association’s Negligence Section, the State Bar of Michigan’s Professional Ethics Committee and the American Bar Association’s Committee on Professional Responsibility and Liability.

Plunkett Cooney Board Affiliations

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 140 attorneys in seven 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 selected by Crain’s Detroit Business as its inaugural Law Firm of the Year.

For more information about Plunkett Cooney’s newly-elected board members and officers, contact the firm’s Director of Marketing & Business Development John Cornwell at (248) 901-4008 or via email at jcornwell@plunkettcooney.com.

HRPro’s Educational Series Presents: “Understanding the Employee Experience”

 

Human Resources.  When HR first started, it really was just payroll and benefits.  In the last 30 years, it has evolved into creating an experience that attracts candidates, grows your team and creates an engaging environment throughout an employee’s career, all while keeping you compliant with the ever-changing federal, state and local laws.

From recruitment to retirement, what does the employee life cycle look like? What processes can you put in place to ensure that your employees are getting the most out of their journey within your organization?

In this 60-minute workshop, we will take a closer look at the subtopics of Attraction, Recruitment, Onboarding, Talent Management, Rewards & Recognition, Retention and Transition.  When these are connected, you drive positive employee engagement.

Engaged employees are more productive employees which will lead to better profit margins and growth for your organization.  This puts your organization on the fast path to success.

When:  Wednesday, March 25, 2020 from 8:00 am – 9:30 am

Where:  HRPro Washington Conference Room, 1025 N, Campbell Road, Royal Oak , MI

What:  Continental breakfast, seminar and materials

To register: https://www.eventbrite.com/e/hrprobenepros-educational-series-understanding-the-employee-experience-tickets-95247761619

For more Information: https://hrpro.com/event/webinar-understanding-the-employee-experience/