American Society of Employers (ASE) Welcomes 17 New Members

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By: American Society of Employers (ASE)

 

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

 

American Society of Employers (ASE) Welcomes 17 New Members

Livonia, Mich. —January 24, 2019 — The American Society of Employers (ASE), one of the nation’s oldest and largest employer associations, announces 17 organizations joined ASE as members during the fourth quarter of 2018. The organizations are:

  • AcuMax Index is an assessment designed to identify the natural wiring of job candidates and existing employees. Insights from the AcuMax Index are helping organizations to hire and develop a strong, productive workforce.  They are located in Dearborn.
  • Destination Ann Arbor is a not-for-profit organization whose mission is to enhance the economy of the Ann Arbor area, and Washtenaw County in general, through the promotion of the area as a destination for day and overnight visitors.
  • Dynamic Computer Corporation delivers customized IT solutions for asset and lifecycle management (ITAM), unified endpoint management (UEM) and IoT product development.  They are located in Farmington Hills.
  • Flexible Metal, Inc. designs and manufactures metal tubular assemblies for diesel and gasoline engines, automobiles, on-highway, and off-highway vehicles, agricultural vehicles, engine generator sets and a wide variety of original equipment applications.  They are located in Hamburg.
  • Macomb County Department of Planning and Economics specializes in providing services to businesses at all stages of development with a concentration on the high-growth industries of aerospace, alternative energy, advanced manufacturing, defense, and homeland security.
  • Michigan Bankers Association is a trade association of Michigan financial institutions which currently includes more than 2,300 branches located throughout the state.  They are located in Lansing.
  • Michigan Manufacturing Technology Center is an organization dedicated to supporting Michigan manufacturers to work smarter, to compete and to prosper.  They have several locations throughout Michigan.
  • P & C Group I, Inc. supplies automotive parts and accessories. The Company offers seat structures and wire frames, latches, hinges, wire seat suspensions, wire frames, visor rods, and towel bar assemblies.  They are located in Farmington Hills.
  • Randazzo Heating and Cooling is a family-owned, Michigan-based company that provides heating and cooling services.  They are located in Macomb and serve southeast Michigan.
  • Reverie produces custom mattresses and is located in Bloomfield Hills.
  • Southwest Detroit Community Justice Center serves a mission to increase public trust in the justice system, assist in the reduction of crime, improve the quality of life, and meet the needs of the community.
  • Ternes provides packaging solutions to the automotive industry and is located in Livonia.
  • The Library Network is a public library cooperative serving 75 libraries in southeast Michigan whose mission is to provide and facilitate quality services developed through the collaboration of member libraries.  They are located in Novi.
  • The University of Michigan is a top-ranked public university located in Ann Arbor.
  • University Pediatricians provide comprehensive medical treatment and services in all areas of pediatric medicine in coordination with the Children’s Hospital of Michigan.

ASE President & CEO, Mary E. Corrado, made the announcement and stated, “ASE welcomes our newest members and looks forward to being their number one resource for all the HR and employment-related needs.”

 

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

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

Whistleblower Claim Delivered To The Employee With A Bow!

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By:  Claudia D. Orr, Attorney, Plunkett Cooney

 

Whistleblower Claim Delivered To The Employee With A Bow!

 

Sometimes I read an opinion and I am just astonished by the decisions made by the employer and just how wrong things can go.  This is a case that never should have happened and probably wouldn’t have had the employer obtained legal advice before acting. Let’s look at what happened in Apacanis v Carter and Services to Enhance Potential (STEP), a recent unpublished decision of the Michigan Court of Appeals.

STEP is a nonprofit that contracts with Detroit/Wayne County Mental Health Authority (the Authority) to provide various services to individuals who have mental health issues or other disabilities. Plaintiff Whitley Apacanis is employed by STEP and receives job-training assistance from it.  Defendant Carter is employed by STEP as a liaison between outside agencies and clients, like plaintiff.  Clients, like plaintiff, receive on-the-job training as they work in STEP’s workshop assembling various items.  Clients also receive a small payment for their work.

One evening, plaintiff and Samuel Eiland, another STEP client, engaged in a number of sexual acts at Eiland’s home. All but one sexual act was consensual. But that is all it takes because no means no.  When plaintiff objected, Eiland sexually assaulted her.  Plaintiff reported the assault to the police and also to the courts via her request for a personal protective order against Eiland.

Plaintiff also reported the assault to STEP. While no assaultive behavior occurred at work, Eiland was banned from the premises and suspended as a client. Significantly, STEP also suspended plaintiff because she had reported the crime to the police and had obtained a PPO.  In fact, the written suspension given to plaintiff stated: “Consumer suspended from program until completion of pending criminal investigation.” Is that a collective gasp I am hearing from readers? It took my breath away to be sure.

Plaintiff sued under the Whistleblowers’ Protection Act (WPA), MCL 15.361, et seq, and the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101, et seq. The case was dismissed by the lower court when it granted the defendants’ motion for summary disposition.

On appeal, the dismissal of the retaliation claim under ELCRA was upheld by the appellate court because there was no evidence that STEP took any action against plaintiff based on the exercise of any rights under ELCRA. The alleged assault did not occur on the premises and STEP took appropriate action by removing Eiland as soon as it received notice of plaintiff’s allegations.

However, the WPA claim is a problem for STEP.  The WPA makes it unlawful for an employer to-

[d]ischarge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee … reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.

MCL 15.362. Over the years I have found whistleblower claims to be the most dangerous claims to defend, in part because of the decisions from the appellate bench.  For example, case law provides that (1) the employee’s motive to use the law as a sword, rather than a shield (i.e., trying to obtain some job security when he/she is about to be fired) is no longer relevant; (2) it doesn’t matter if the employee’s job required him/her to make the report and they were simply acting within the scope of their duties; and (3) conferring with an attorney, who is an “officer of the court”,  satisfies the “public body” requirement). These are just a few of the troubling rulings for employers from Michigan’s appellate bench.

To prove her claim,  plaintiff is required to show (1) she engaged in protected activity; (2) the employer took an adverse action against her; and (3) a causal connection existed between the two. Here, it is undisputed that plaintiff reported a violation of the law (the alleged rape) to a public body (the police and the court). While STEP conceded that it based its decision on plaintiff’s report (the causal connection), it argued as a defense that it had not taken an “adverse action” against the plaintiff because it reinstated her.  Does any reader believe for a moment that this argument succeeded?

Defendants admitted that for “a period of several weeks plaintiff was suspended, and therefore prevented from receiving services and earning pay from STEP, and that her suspension was based solely on her decision to report Eiland and his alleged sexual assault of plaintiff to police.”   This is clearly an adverse employment action.  I recall one court’s opinion that held a suspension, that was thereafter paid, was an adverse employment action because of the uncertainty and stress during the period of suspension.

Defendants also argued that the suspension was “justified” because STEP had consulted with the Authority and that the state mental health code required it to treat both plaintiff and Eiland the same – either suspend both or neither.  The appellate court noted that defendants failed to cite any legal authority that supported their proposition that “the victim of an alleged crime should be treated exactly the same as the alleged perpetrator”. The appellate court seems shocked and displeased by the defendants’ actions too.

The appellate court noted that “there is only one exception to [WPA’s] prohibition against taking an adverse employment action as retaliation for otherwise protected conduct:  if the employee knowingly makes a false report about the alleged violation of law.” The court rejected defendants’ position, stating “[t]here is not, as defendants seem to believe, an exception granted for employers who feel they can justify conduct that otherwise violated the WPA.”  Because defendant Carter signed the suspension form and was identified as the decision maker, she is also responsible for any violation of the WPA.  Thus, the appellate court reversed the dismissal of the WPA claim as to both defendants and sent the claim under the WPA back to the lower court for trial.

This case just leaves me shaking my head and wondering at what point did STEP consult with an employment attorney. Perhaps not until the lawsuit was filed at which point defense counsel was stuck with the facts above.  If there is one take away for the reader it should be this:  always consult with an experienced employment attorney before you take action against an employee whenever you have any unusual circumstances. There may be little any attorney can do for these defendants given the actions taken and the admissions that they have made.

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. January 2019.

 

Time is running out to recognize Notable Women in HR

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By: Crain’s Detroit Business 

 

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Crain’s Detroit Business will name the 2019 Notable Women in HR in a special report on March 18.

In that report, we’ll profile women who are the glue holding their organizations together, are employee advocates, have an eagle’s eye for talent, consult on best practices and are considered leaders in their workplaces and in the community.

The form and accompanying materials must be submitted by Monday, Jan. 28.

 

NOMINATE

Ultimate Software hosts 2019 Top HR Technology Trends you need to know

Ultimate Software

By: Ultimate Software

 

FOR IMMEDIATE RELEASE 1-22-19

 

Ultimate Software hosts 2019 Top HR Technology Trends you need to know

 

HR that gets respect at the executive table has to have a compelling HR systems strategy. That’s just one of the findings of the latest annual overview of important HR systems trends by Sierra-Cedar.

Register for our complimentary live webcast on February 5th, 2pm EST as Stacey Harris, VP of research and analytics at Sierra-Cedar, and Cecile Alper-Leroux, VP of human capital management innovation at Ultimate Software discuss new insights from the world’s largest HR technology benchmarking study and the trends guiding the workforce in 2019—along with practical advice to capitalize on your HR technology investments and ensure the best levels of technology user adoption.

Approved for 1 SHRM, HRCI, & HRPA credit

Register Here: https://www.ultimatesoftware.com/contactform/7010d000001GS1P?utm_source=linkedin&utm_medium=social&utm_campaign=webcast

Contact Christie Hecht for more information:
Christie_Hecht@UltimateSoftware.com
248.229.5125

Speakers:

Cecile Alper-Leroux
cecile

Cecile Alper-Leroux is the VP of HCM Innovation at Ultimate Software and a sought out peaker, thought leader, and visionary on HCM trends, hot topics, and global strategies. An economic anthropologist with more than 20 years of experience worldwide, Cecile has dedicated her life to helping companies design experiences that enable all people to achieve highly purposeful and productive jobs. She is passionate about the extraordinary transformation of the work environment and the vastly more human-centered ways of building meaningful careers. A recognized voice in the HCM industry, Cecile has been featured in Forbes, HuffPost, HR Magazine, HRD Canada TV, and The Wall Street Journal.

Stacey Harris

Stacey.jpgStacey Harris is VP of research and analytics for Sierra-Cedar, overseeing their annual HR Systems Survey and research. With a M.A. Ed and B.A. degrees from Kent State and Ashland University, she has been a leading member of the HR practices and technology research community with groundbreaking research on high-impact HR organizations, enterprise HR technologies, and key practices across the talent management spectrum. Prior to joining Sierra-Cedar, Harris held executive level research roles with multiple research organizations. She has launched multiple research initiatives in HR, talent management, learning, rewards, and organization and governance. In July of 2017, Stacey was appointed to The International Association for Human Resource Information Management (IHRIM) Board of Directors. Harris is also a co-Host of HR Tech Weekly Radio Show and a frequent speaker and facilitator at HR events in the U.S. and abroad.

Gooden Joins Plunkett Cooney Transportation Law Practice Group

Plunkett Cooney

By: Plunkett Cooney 

 

 

FOR IMMEDIATE RELEASE
DATE:  January 21, 2019
CONTACT:  John E. Cornwell (248) 901-4008

 

Gooden joins Plunkett Cooney’s transportation group

BLOOMFIELD HILLS, Mich. – January 21, 2019 – Plunkett Cooney, one of the oldest and largest law firms in the Midwest, has increased the depth of its Transportation Law Practice Group with the addition of attorney D’Antae D. Gooden.

A member of Plunkett Cooney’s Bloomfield Hills office, Gooden focuses his litigation practice in the areas of third-party motor vehicle negligence, no fault law, premises liability and employment litigation.

Gooden2018_Original.jpgGooden has experience handling first-party personal injury protection claims, third-party auto negligence claims, as well as cases involving alleged fraud and suspicious insured claims related to motor vehicle accidents. He also has experience handling employment law matters that include allegations of discrimination, sexual harassment, retaliation and civil rights violations.

Gooden graduated, cum laude, from the University of Detroit Mercy School of Law in 2018. He received his undergraduate degree from Michigan State University in 2015.

Plunkett Cooney’s Transportation Law Practice Group includes the talents of more than 20 attorneys across the states of Michigan, Ohio and Indiana. The group members provide an array of litigation and risk management services, including particular 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 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 Gooden joining Plunkett Cooney’s Transportation 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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ASE Courses Now Offered in Mount Clemens and Lansing

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By: American Society of Employers (ASE)

 

American Society of Employers to offer HR and leadership-focused classes in two new locations: Mount Clemens and Lansing

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

Livonia, Mich. —January 16, 2019 — ASE, a not-for-profit employer association that serves as a source for information and support on all matters affecting employment, recently announced that it would expand the instructor-led courses it offers into Mount Clemens and Lansing. “We are very excited to extend our reach to these areas in Michigan,” stated ASE President & CEO Mary E. Corrado.  “As our membership grows, we continue to extend our services to meet their needs.”

In partnership with Macomb County Planning and Economic Development, ASE now offers classes in Mount Clemens for HR professionals and business leaders.  “Macomb County offers many services to help businesses achieve success,” said John Paul Rea, Director of the Department of Planning & Economic Development. “This new partnership offers a great opportunity for HR professionals and others to enhance their skills at a training offered close to home.”

ASE has partnered with the Michigan Bankers Association to bring similar classes to the Lansing area.  “We are excited to collaborate with the American Society of Employers to bring our members even more valuable training options,” stated Stephanie A. Fisher, Director of Education, Michigan Bankers Association.

As an introductory offer, ASE is offering member rates and an additional 10% discount now through March 15. To take advantage of this offer, enter discount code ‘TD10’ when registering.  Interested individuals can register by email at asetraining@aseonline.org or by calling 248-223-8041. A full list of classes and events can be found on the ASE website at www.aseonline.org.

 

 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 for over 115 years. 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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Plunkett Cooney names five attorneys as new shareholders

Plunkett Cooney

By: Plunkett Cooney 

FOR IMMEDIATE RELEASE
DATE: January 14, 2019
CONTACT: John Cornwell (248) 901-4008

Plunkett Cooney names five attorneys as new shareholders

 

BLOOMFIELD HILLS, MI – January 14, 2019 – Plunkett Cooney, one of the Midwest’s oldest and largest law firms, recently named five attorneys as its newest shareholders.

Chase M. Kubica, Mitchell McIntyre, Christopher J. Scott, Kimberly K. Seibert and Andrea Forsyth Telling were unanimously approved by the firm’s Board of Directors as the firm’s newest shareholders. The promotion from associate attorney is based on the recommendations of the firm’s Shareholder Evaluation Committee and is effective January 1, 2019.

kubica2015_colorKubica is a member of the firm’s Bloomfield Hills office who focuses his litigation practice in the areas of motor vehicle liability, no fault law and premises liability. He represents national insurers, corporations and individuals in first- and third-party automobile negligence claims, as well as uninsured and underinsured motorist benefits. Kubica also has experience handling cases that involve alleged fraud and suspicious insured and medical provider claims related to motor vehicle accidents.

Admitted to the State Bar of Michigan and the U.S. District Court for the Eastern District of Michigan, Kubica has been named as a Michigan Super Lawyers Rising Star since 2013. He is a 2010 cum laude graduate of the University of Detroit Mercy School of Law and a 2006 graduate of Michigan State University.

mcintyre2019McIntyre is a member of the firm’s Transportation Law Practice Group. He has extensive experience with insurance coverage, no-fault and high exposure transportation litigation and also specializes in transportation network claims and ride-sharing. McIntyre represents some of the largest carriers and rental car corporations in the country and acts as Michigan panel counsel for one of the premier network transportation companies.

A member of the firm’s Detroit office, McIntyre graduated, cum laude, from Wayne State University Law School in 2012 where he received both the Silver and Bronze Key Academic Awards.  He received his undergraduate degree from Central Michigan University in 2008.

Scott is a member of the firm’s Flint office who focuses his practice in all areas of law concerning personal injury, property damage or commercial liability. He handles matters that include premises liability, construction liability, trespass/tree removal liability, civil rights, medical liability, trusts and estates, probate litigation and litigation involving motor vehicle no-fault and negligence claims.

Scott graduated from Western Michigan University Cooley Law School in 2003. He graduated from the University of Michigan – Flint in 1998.

Seibert serves as co-leader of Plunkett Cooney’s Transportation Law Practice Group. She focuses her practice in the areas of motor vehicle negligence and no-fault law, routinely defending insurers, rental car companies, trucking companies, and corporations in no-fault coverage disputes and negligence suits.

A member of the firm’s Detroit office, Seibert has been named for the past two years as a Michigan Rising Star in Civil Litigation Defense by Michigan Super Lawyers. She received her law degree from Wayne State University Law School in 2011 where she received the Bronze Key Certificate. Seibert received her undergraduate degree from University of Michigan in 2008.

telling2018_colorRounding out the list of Plunkett Cooney’s new shareholders is Andrea Forsyth Telling, who is a member of the firm’s Grand Rapids office. Forsyth Telling focuses her practice in the area of transportation law with particular emphasis on first- and third-party motor vehicle liability claims. Her practice has particular emphasis on the representation of national insurance providers in complex medical fraud litigation, complex attendant care matters and extra-contractual litigation disputes.

Admitted to practice in Illinois, Colorado and Michigan, as well as the federal courts in Illinois and Michigan, Forsyth Telling received her law degree, with high honors, from Chicago-Kent College of Law in 2005 and her undergraduate degree from DePaul University in 1998.

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, another 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 winner.

 

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


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New Shareholders Professional Affiliations and Education 2019

 

Join us on

 

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­­Open.FIRMADMIN.PD.21450959-1

25 CAPTRUST Office Teams Named to NAPA Top DC Advisor Teams List

captrust

By: Captrust 

 

25 CAPTRUST Office Teams Named to NAPA Top DC Advisor Teams List

The CAPTRUST Clarkston, MI office ranked largest 401(k) advisor team in Michigan.

The National Association of Plan Advisors (NAPA) publishes an industry list that recognizes top defined contribution (DC) advisor teams. The list, compiled by NAPA’s Nevin E. Adams, features teams with a DC practice and includes 25 CAPTRUST teams. When ranked by DC assets under advisement, CAPTRUST teams constitute half of the list’s top 10.

The list also includes data regarding each team’s total number of DC plans supported, as well as the total number of participants covered by those plans.

To view the entire list, please click here.

About CAPTRUST

CAPTRUST Financial Advisors is an independent investment research and fee-based advisory firm specializing in providing investment advisory services to retirement plan fiduciaries, endowments and foundations, executives, and high-net-worth individuals. Headquartered in Raleigh, North Carolina, the firm represents more than $278 billion in client assets with 38 offices located across the U.S.

Wellness Plan Rules Under Attack

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By:  Claudia D. Orr, Attorney, Plunkett Cooney

 

Wellness Plan Rules Under Attack

Do you remember how you struggled with creating a wellness plan for your workforce until the Equal Employment Opportunity Commission (“EEOC”) published its final Wellness Rules under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”) in May 2016?  Ah, a sigh of relief.  You could finally develop your wellness program and offer employees incentives to keep your healthcare costs down without running afoul of either federal law if you followed the rules.  Take a deep breath because a key provision of these final rules has been scrapped.

A wellness program is intended to help keep the cost of healthcare benefits down by encouraging employees to become healthier by quitting smoking, exercising at a gym, losing weight, eating healthier, etc.  The concern, if you recall, is that in order to participate, employees generally need to respond to disability-related inquiries about themselves and/or their spouse and could be required to submit to a medical examination. Both the ADA and the GINA restrict an employer’s ability to make disability-related inquiries or to require medical examinations. However, under the final rule, such inquiries and examinations were permitted if they were part of an employee health program that was reasonably designed to promote health or prevent disease and participation is voluntary.

But, is participation truly voluntary if the employee is going to pay less for health insurance if he or she participates? What if it is significantly less? As a practical matter, is it still voluntary? The guidance issued by the EEOC in May 2016 set the limit on the financial incentive at 30% of the total cost of “self only” coverage for this reason. See 42 CFR 1630.14 (d)(3) [ADA] and 29 CFR 1635.8 (b)(2)(iii) [GINA]. Employers can offer a carrot, but it can’t be a really big sweet one.

In October 2016, AARP challenged the incentive section of the final rules under the ADA and GINA in the United States District Court for the District of Columbia. In August 2017, the district court found that the EEOC failed to provide sufficient reasoning for the 30% incentive limit and remanded the rule back to the EEOC (without vacating it) instructing the EEOC to reconsider it. AARP was not overly thrilled with the court’s order and filed a motion seeking to alter or amend the order. The court then vacated the incentive section of the final rules and, effective last month, 42 CFR 1630.14 (d)(3) [ADA] and 29 CFR 1635.8 (b)(2)(iii) [GINA] have been removed from the final rules.

So, what will the EEOC do next?  It is hard to tell.  First, it has to reopen.  Yep, the EEOC is one of the budget fight closures.

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. January 2019.

Governor Synder Signs Off On Paid Medical Leave Act and Improved Workforce Opportunity Wage Act

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By: Claudia D. Orr, Attorney, Plunkett Cooney 

 

Governor Synder Signs Off On Paid Medical Leave Act and Improved Workforce Opportunity Wage Act

 

The Michigan legislature’s lame duck session approved two bills that were sent to, and signed by, Governor Snyder on December 14, 2018. The Paid Medical Leave Act (“PMLA”) requires certain Michigan employers to provide eligible employees with paid time off to address their medical issues or those of a family member and for other reasons including sexual assault or domestic violence. The Improved Workforce Opportunity Wage Act slowly increases the state’s minimum wage rate through calendar year 2030.

Beginning with the minimum wage rate changes, the increases are to occur each calendar year unless the state’s unemployment rate was 8.5% or greater during the prior calendar year.  Should that happen, the increase will occur in the first calendar year following a calendar year when the unemployment rate is less than 8.5%.  Assuming no delays, the following minimum wage rates shall be in effect for the following calendar years:  2019 – $9.45, 2020 – $9.65, 2021 – $9.87, 2022 – $10.10, 2023 – $10.33, 2024 – $10.56, 2025 – $10.80, 2026 – $11.04, 2027 – $11.29, 2028 – $11.54, 2029 – $11.79,  2030 – $12.05.  Tipped employees (those who regularly receive gratuities) remain at 38% of the minimum wage rate, provided the tips and wage payments do not fall below the minimum wage rate established by state or federal law. For proponents of the $15.00 minimum wage rate, this is clearly disappointing news.

However, employees working for private employers having 50 or more employees may be eligible for paid leave time under the PMLA.  An “eligible employee” excludes certain individuals such as those who are exempt under the Fair Labor Standards Act, have a primary work location outside of Michigan, worked less than 25 hours/week in the prior calendar year, or were employed by a “temporary help firm”, among others.

Under the PMLA, an eligible employee would accrue paid leave at a rate of at least one hour for every 35 hours worked, but the employer is not required to allow an employee to accrue more than an hour in a work week and it may cap the accrual at 40 hours per benefit year. In the alternative, an employer may grant 40 hours of paid leave at the beginning of a benefit year (and may prorate the amount for an employee hired during the benefit year).  A benefit year is any twelve month period used by the employer to calculate employee benefits (i.e. a rolling year, calendar year, etc.).

Paid leave begins to accrue the latter of the effective date of the law (on the 91st day after the final adjournment of the 2018 legislative session, or Mar. 21, 2019 if the last day in session is Dec. 20, 2018) or upon the individual’s employment. The employee can use the paid leave as it accrues, but the employer may deny use until the 91st day of employment. Leave can be used in 1-hour increments, unless the employer uses and has a different increment in a written policy.

An employee may carry over 40 hours from one benefit year to another, but the employer does not have to allow the employee to use more than 40 hours in any benefit year or pay the employee for time not used by the end of the year.

Time off may be used for (1) the employee’s own mental or physical illness, injury, or health condition, for diagnosis of the medical condition or its care or treatment, or preventative healthcare, or for these same reasons for a family member of the employee; (2) if the employee or a family member is the victim of sexual assault or domestic violence  in order to address medical or psychological issues, to obtain victim services, to relocate, to obtain legal services or to participate in civil or criminal proceedings; or (3) due to the closure of the employee’s workplace or child’s school or place of care by order of a public official due to a public health emergency, or if health authorities or the healthcare providers determine that, due to exposure to a communicable disease, the presence of the employee or family member in the community might jeopardize the health of others. Only certain family members are included within the definition of that term in the act.

An employee who transfers to a separate division, entity, or location but remains employed by the same employer, will retain all leave that was previously accrued. When the employment relationship terminates, the employer is not required to pay out any unused paid leave.  If the employee is re-employed, the employer is not required to credit the employee with previously unused time.

The Department of Licensing and Regulatory Affairs is charged with enforcement of the act including investigating complaints by employees.  An employer that fails to provide paid medical leave is subject to a $1000.00 and may be ordered to make payment to the employee for the leave that was withheld.   The Department must provide a means for appeal of its orders and there are requirements for posting notices and for record retention by employers. There are also rules concerning current collective bargaining agreements and the donation of time from one employee to another.

Employers having 50 or more employees should consult legal counsel for further details concerning this new law and for a policy and procedure that is in compliance.

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. December 2018.