Michigan Appellate Court Calls for a Conflict Panel to Decide Issue Under Michigan Wages and Fringe Benefits Act

By: Claudia D. Orr

I know some might laugh, but these types of things get me really excited!  First, the Michigan Court of Appeals hardly ever publishes an employment law opinion and, second, it is requesting a conflict panel to revisit a prior ruling. This is exceptionally rare. Moreover, there are very few cases published under the Michigan Wages and Fringe Benefits Act (“WFBA”) and a conflict panel, if assembled, could significantly expand an employee’s right to be free from retaliation.  Let’s see what the issue is in Ramos v Intercare Community Health Network, a 2:1 divided opinion published on January 30, 2018.

Joel Ramos worked for Intercare Community Health Network (“Intercare”) for about two years when he was fired for allegedly submitting a false timesheet.  Ramos filed a complaint with the Wage and Hour Program of Michigan’s Department of Licensing and Regulatory Affairs. Ramos claimed that, by “accurately” filling out and submitting his timesheet he was exercising a right to receive his wage payment under the [WFBA] and he was discharged unlawfully for exercising that right under the act.  The Wage and Hour Program disagreed, finding that Ramos had not exercised rights under the act and the circuit court upheld its ruling.

The WFBA provides that:  An employer shall not discharge an employee or discriminate against an employee because the employee filed a complaint, instituted or caused to be instituted a proceeding under or regulated by this act, testified or is about to testify in a proceeding, or because of the exercise by the employee on behalf of an employee or others of a right afforded by this act.

MCL 408.483(1) (emphasis added).  The issue was whether an employee’s exercise of his own rights “is the exercise of rights on behalf of ‘an employee’ because he is ‘an employee.’”

Previously, in Reo v Lane Bryant, Inc, 211 Mich App 364 (1995), it was decided that the “employee must be exercising a right afforded by the act on behalf of another employee or other person.  Simply exercising a right on one’s own behalf would not bring an employee within the purview of [MCL 408.483].”  But now, the appellate court concluded that the Reo case was wrongly decided because the word another is not found in the statute. However, it also recognized that it was bound by precedent and therefore affirmed the circuit court’s decision, but called for a conflict panel to reevaluate the issue.

Judge Hoekstra, the dissent, agreed with the majority’s decision to affirm the lower court’s decision, but found no error in the precedent that bound the appellate court’s decision.  First, he noted that only the last clause (“…because of the exercise by the employee on behalf of an employee or others of a right afforded by this act”) was at issue since Ramos had not filed a complaint, testified (or was about to testify) or instituted (or caused a proceeding to be instituted) under the act.  Then, relying on Black’s Law Dictionary he found that the phrase “on the behalf of” means “in the name of, on the part of, as the agent or representative.” Thus, while the statute does not contain the word another, it is clear that there must be some sort of an agency whereby the employee is acting “on behalf of another employee or other person.”  Finding that Reo had been correctly decided and that it has been the rule of law for more than 20 years, Judge Hoekstra found no need to a assemble a conflict panel.

Thus, the rule remains for now that, to be protected from retaliation under the WFBA, an employee must be acting on behalf of another employee and cannot simply turn in his own time card (accurate or not).  There are some other quirks under the WFBA that can be used for the benefit of employers in their personnel policies.  If you aren’t sure how to apply this law favorably for your company, you should consult with 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).  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. February 2018.

 

Should You Sigh in Relief When the Employee Resigns and Signs a Release? Maybe Not…

By: Claudia D. Orr

I just read a decision by the Michigan Court of Appeals that involved a “constructive discharge” and a “waiver of rights” and thought it might be an interesting example of how things can go wrong.  Let’s see what happened in Bowen v Alpena Regional Medical Center, an unpublished decision issued on January 16, 2018.

Plaintiff, a union employee, had been employed by the medical center for about five years when his employment ended in November 2015.  On his last day, plaintiff was presented with a disciplinary action indicating his employment would be terminated for excessive absenteeism and failure to follow job duties or treat others with courtesy and respect.  Plaintiff was offered a choice: (1) he could be terminated, and retain the right to pursue a grievance under the collective bargaining agreement; or (2) he could resign.  If plaintiff resigned, the medical center would not challenge his claim for unemployment benefits or disclose the reasons for plaintiff’s discharge to potential future employers. Plaintiff chose the latter and signed the following statement:

My resignation from Alpena General Hospital is voluntary.  I am aware [sic] applicable Hospital policies and procedures, as well as what rights I may have under a union contract, and hereby waive any and all of those rights/processes I may have, including the right to contest or grieve this or any employment action in accordance with that union contract.

Three months later, plaintiff filed a lawsuit claiming his “termination” was “the culmination of years of harassment suffered at the hands of [p]laintiff’s supervisor and other employees following plaintiff’s reporting of another employee’s workplace misconduct in August 2012.”  Plaintiff claimed he was “coerced” into signing the document under threat of losing unemployment benefits and having his reputation disparaged to potential future employers. Plaintiff brought claims under the Whistleblowers’ Protection Act, the Elliott-Larsen Civil Rights Act and the Public Health Code and, in an amended complaint, alleged he had been constructively discharged.

The Alpena Circuit Court granted the medical center’s motion for summary disposition finding that plaintiff could not show he signed the agreement under duress and therefore was bound by a waiver of all claims, including the statutory claims brought in the lawsuit. The plaintiff appealed and the Michigan Court of Appeals reversed.

The scope of a release is a matter of contract that must be enforced as written if it is unambiguous.  Here, the agreement was limited to “those rights/processes [he] may have, including the right to contest or grieve this or any employment action in accordance with that union contract.” The court noted that the phrase “rights/processes” was a reference to the “Hospital policies and procedures” and those he “may have under the union contract.”  However, the release did not make any reference to statutory claims and therefore those claims were not included within the scope of the release agreement.

Next, the appellate court found that plaintiff may be able to prove he was constructively discharged.  Quoting prior court decisions, it explained that –

[T]he doctrine of constructive discharge is a legal fiction created to determine whether a plaintiff’s facially voluntary resignation was, in  actuality, a result of the defendant’s improper conduct such that the court will consider the resignation to be a de facto involuntary termination of the plaintiff’s employment.  Constructive discharge is not a cause of action in-and-of-itself; rather constructive discharge is “a defense that a plaintiff interposes to preclude the defendant from claiming that the plaintiff voluntarily left employment.” A constructive discharge depends upon the facts of each case and occurs when a reasonable person in the plaintiff’s position “would have felt compelled to resign” as a result of the employer’s improper conduct.

(Citations omitted). The appellate court further explained that a constructive discharge can be established without showing duress, but the mere fact that a plaintiff was given the choice of resigning or being fired is insufficient unless the plaintiff can also show that the employer lacked “good cause to believe that there were grounds for the termination.”

The “very nature of constructive discharge is that a seemingly voluntary resignation was, in fact, an involuntary discharge in the face of intolerable conditions.”  However, intolerable conditions years, or even months before the resignation are likely not relevant; there should be some temporal proximity between the events/resignation to establish a causal connection. Where the plaintiff cannot establish a constructive discharge, a statutory retaliation or discrimination claim will fail because it lacks the requisite adverse employment action. Here, discovery had not yet closed when the case was dismissed and there remained a question of fact whether plaintiff was constructively discharged or voluntarily resigned.

So, what is the take-away from this case?  First, make sure the release agreement is written broadly enough to include statutory claims.  Also, allow the employee to take the agreement with them and think about it for a few days especially if the employee makes this request. Most of my clients involve me in termination decisions and in drafting their release agreements.  Even an unsigned release agreement can be enforced where the employee accepted the consideration tendered in the agreement.  The key is to always consult with experienced employment counsel, such as the author, before the employee is terminated.

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

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. January 2018.

DOL Issues New Guidance on Unpaid Intern Programs

By: Karen L. Piper

On January 5, 2018, the Department of Labor (“DOL”) rescinded its 2010 six-factor test for determining whether a worker is an unpaid intern or an employee entitled to be paid.  Under the rescinded guidance, an intern was considered an employee unless the employer met all six factors.  Unpaid intern programs often failed because the employer could not show it derived “no immediate advantage from the activities of the intern.”

The DOL concurrently issued new guidance for determining whether an intern should be classified as an employee.  The new guidance adopted the “primary beneficiary” test established by the Second Circuit Court of Appeals in Glatt v Fox Searchlight Pictures, Inc. (2015).  Three other federal appellate courts, including the Sixth (covering Michigan, Ohio, Kentucky and Tennessee), the Ninth and the Eleventh Circuits, also have used the primary beneficiary test.

Under the new test, the pertinent question is whether the intern or the employer is the primary beneficiary of the relationship.  The new test has seven factors:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation.  Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The primary beneficiary test requires weighing and balancing all of the circumstances with no one factor being dispositive.  The list of factors is not exhaustive; courts may consider other relevant factors.  And, not all factors have to point in the same direction.  The “touchstone” of the “analysis is the ‘economic reality’ of the relationship” – the test that is used to determine whether a worker is an independent contractor or an employee.

The new primary beneficiary test is more flexible and should make it easier for employers to provide unpaid intern programs, as long as the program is designed to benefit primarily the intern.  An employer considering establishing an intern program should carefully review the above factors and consult experienced employment counsel, such as the author, to ensure the program satisfies the primary beneficiary test.

This article was written by Karen L. Piper, who is Chair of the Legal Affairs Committee of Detroit SHRM, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

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 are included in the re-post of the article. January 2018.

DOL Reinstates FLSA Opinion Letters

By: Karen L. Piper

On Friday, January 5, 2018, the Department of Labor (“DOL”) reinstated its longstanding practice of issuing opinion letters on the Fair Labor Standards Act (“FLSA”).  It did so by reissuing 17 opinion letters originally issued in January 2009 (under the Bush Administration).  These opinion letters were withdrawn or put on hold for further consideration in March 2009 (under the Obama Administration).  The Obama Wage & Hour Division (“WHD”) did not issue any opinion letters.  Instead, beginning in March 2010, the Wage & Hour Division issued its first “Administrator Interpretation” addressing the issue of administrative exemption for mortgage loan officers.  As announced, these Administrator Interpretations were designed to replace opinion letters and to cover broader issues.

In June 2017, the Department of Labor withdrew two Administrator Interpretations on joint employment (2015) and independent contractors (2016).  The DOL announced then that it planned to reinstate the practice of issuing opinion letters which were DOL responses to specific fact situations submitted by the public.

The reissued opinion letters have new 2018 numbers, but reproduce “verbatim” the text of the letters issued in January 2009.  The letters are an “official statement of WHD policy.”  This means employers can rely on them.

The issues addressed in the 2018 letters include the following.

  • Whether ambulance personnel “on-call” time is compensable work hours.
  • Whether community members who coach athletic teams for a public school are exempt.
  • Whether an employer may exclude previous payments properly excluded from the regular rate when calculating a year-end bonus which is based on a percentage of an employee’s total straight-time and overtime earnings.
  • Whether client service managers at an insurance company qualify for the administrative exemption
  • Whether an employer can deduct an hourly equivalent of a full day of work from an exempt employee’s salary when the employee is absent for one or more full days due to personal reasons or for such leave after having exhausted paid sick leave.
  • Whether an employer can make a salary deduction from an exempt employee’s salary when the employee is absent for a full day but does not have enough leave time in his/her leave bank to cover an entire day.

The reissued letters are posted on the DOL website: https://www.dol.gov/whd/opinion/flsa.htm

Questions about these or other federal wage and hour issues should be discussed with experienced employment counsel, such as the author.

This article was written by Karen L. Piper, who is Chair of the Legal Affairs Committee of Detroit SHRM, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com.  For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

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 are included in the re-post of the article. January 2018.

To vaccinate or not to vaccinate…that seems to be the question of the day!

By: Claudia D. Orr

Every year around this time I get calls from healthcare industry clients about their mandatory flu vaccination program and employee objections. This year was no exception.  In recent years, objections have been based on religious grounds since employees now understand that, if they claim a medical exemption, they will be required to provide some fairly specific support from their healthcare provider.

So, when should an employee be permitted to forego the flu vaccination (and instead be required to wear a mask) as a religious accommodation?  Recently the United States Court of Appeals for the Third Circuit provided a nice analysis of this issue in Fallon v Mercy Catholic Medical Center of Southeastern Pennsylvania.

Fallon was a Psychiatric Crisis Intake Worker at Mercy Catholic since the mid-1990s.  In 2012, employees were told to either get a flu vaccine or submit a request for a medical or religious exemption.  Fallon sought, and was granted a religious exemption in 2012 and 2013 based on a lengthy essay he submitted explaining his “sincerely held” beliefs.  But Fallon’s request was denied in 2014 and he was told his submission no longer sufficed under Mercy Catholic’s new standards for religious exemptions.  He was told to obtain a letter from his clergyperson, which Fallon was unable to do.  Fallon was eventually suspended and terminated, and this lawsuit followed. The federal district court granted the hospital’s motion for dismissal and Fallon appealed to the Third Circuit.

First, let me be clear, a note from a clergyperson is not a requirement for an exemption.  However, a sincerely held religious belief (as opposed to merely a personal belief) is, and that is why Fallon’s appeal failed as explained below.

The Third Circuit began with an analysis of the Supreme Court’s standard for determining whether a belief is religious in nature as had been set forth in United States v Seeger:

“[D]oes the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?” With this standard, the Court differentiated between those whose views were religious in nature and those whose views were “essentially political, sociological, or philosophical…”  The Court stated then, and has continued to reiterate ever since, that no court should inquire into the validity or plausibility of the beliefs; instead, the task of a court is “to decide whether the beliefs professed by a [person] are sincerely held and whether they are, in [the believer’s] own scheme of things, religious.”

Since then, the Supreme Court has further clarified that a “belief in God or divine beings was not necessary; nontheistic beliefs could also be religious within the meaning of [Title VII] as long as they ‘occupy in the life of that individual ‘a place parallel to that filled by…God’ in traditionally religious persons.”  Since then, the Third Circuit has described the situation as follows:  “a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters … is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching…[and] can be recognized by the presence of certain formal and external signs.”  Africa v Commonwealth of Pennsylvania.

The Third Circuit noted that Fallon’s beliefs included that “one should not harm their [sic]own body and strongly believes that the flu vaccine may do more harm than good…that if he yielded to coercion and consented to the hospital mandatory policy, he would violate his conscience as to what is right and what is wrong.”

The court found that these beliefs fail to “address fundamental and ultimate questions having to do with deep and imponderable matters, nor are they comprehensive in nature.  Generally, he simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid this vaccine.” In short, Fallon’s is a medical rather than a religious belief, even though he applied “one general moral commandment (which might be paraphrased as, “Do not harm your own body”) to come to the conclusion that the flu vaccine is morally wrong.”  His sole moral commandment is an “isolated moral teaching” rather than a “comprehensive system of beliefs about fundamental or ultimate matters.”

Finally, the court found that Fallon’s views were “not manifested in formal and external signs, such as ‘formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observation of holidays and other similar manifestations associated with the traditional religions.’”  The Third Circuit, while recognizing that anti-vaccination beliefs may be part of a broader religious faith and be entitled to protection, Fallon’s were not.

While an opinion by the Third Circuit is not “precedent” for Michigan employers, it provided a nice analysis that is instructional.  My guess is that Mercy Catholic’s “standard” for a religious exemption changed because it consulted with new legal counsel.  Any employer that implements a mandatory flu vaccination program will likely have at least one employee seeking an exemption.  Under such circumstances, it is wise to seek advice from an experienced employment attorney, such as the author.

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

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. January 2018.

 

New NLRB Overturns Four Controversial Obama-Era Board Rulings

By:  Julia Turner Baumhart

The newly constituted NLRB has acted quickly to demonstrate its agreement with recently appointed NLRB General Counsel Peter Robb, reversing last week at least four controversial decisions by the Obama-era Board.  The first reversal – and the one most anticipated by employers –was the Board’s return to the pre-Browning-Ferris standard for determining joint employer status.

In 2015, the NLRB, in Browning-Ferris, abruptly changed the definition of “employer” that had originated in common law and in decades old statutory labor law.  Prior to Browning-Ferris, a finding of joint employer status required that one of two employer entities working together had actually exercised joint control over essential employment terms of the other employer’s employees.  A mere potential right to exercise such control would not suffice to create joint employer status.  What the Browning-Ferris Board did in 2015 was to stand this widely held and long accepted “actual control” requirement on its head, holding that joint employer status is found: even when two essential entities have never exercised joint control over essential terms and conditions of employment, and even when any joint control is not “direct and immediate” . . . based on the mere existence of “reserved” joint control, or based on indirect control that is “limited and routine.”

In a decision dated December 14, 2017, the new Board majority overruled the controversial “potential” or “reserved” control standard for joint employment, holding the prior Board exceeded its statutory authority, overlooked the role of Congress, and defied the certainty and predictability that is essential to the stability needed to sustain bargaining relationships.  Simply put, “the Browning-Ferris joint employer standard constituted ‘an approach infected with circularity and unable to produce predictable results.'”  See HyBrand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), overruling Browning-Ferris.

In restoring the actual control test, the new Board majority emphasized in HyBrand the test’s practical understanding of contractual relationships in today’s economy.  After all, various forms of outsourcing, subcontracting, casual labor, and other forms of contingent workforces have been an established fact for a century or longer.  Recognizing this long-standing reality, the new Board held:

An employer receiving contracted labor services will of necessity exercise sufficient control over the operations of the contractor at its facility so that it will be in a position to take action to prevent disruption of its own operations or to see that it is obtaining the services contracted for.

It does not follow that the reservation of such control sufficiently justifies finding that the employer is the joint employer of its contractor’s employees.

Concurrent with overturning Browning-Ferris, the Board majority overruled the Lutheran Heritage “reasonably construe” standard for finding handbook policies or work rules in violation of the NLRA if employees could reasonably construe the policy language as prohibiting some form of concerted activity.  Application of the Lutheran Heritage test in this sweeping fashion, the Board held on December 14 in Boeing Company, 365 NLRB No. 154 (2017), “has invalidated a large number of common-sense rules and requirements that most people would reasonably expect every employer to maintain.”  For example, when Congress passed the NLRA in 1935, it could not have envisioned an employer “violat[ing] federal law whenever employees were advised to ‘work harmoniously’ or conduct themselves in a ‘positive and professional manner.'”  Yet that was the precise holding by the 2016 Obama-era Board in a case involving William Beaumont Hospital.

“No longer”, said the current Board in Boeing. Such rulings cannot be made outside the context of the employer’s justification for the rule.  And applying Boeing’s justification for its “no camera” rule – protecting national security and its own sensitive and often classified operations from espionage by competitors, foreign governments and supporters of international terrorism – the Board held the justification outweighed any limited adverse impact on concerted activity.

Following on the heels of these two major reversals came two more:

  • Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017), overturning Dupont, 364 NLRB No. 113 (2016), to hold an employer does not make a change to employment terms – thereby invoking the need to bargain – where the employer’s modifications are simply a continuation of its prior practice of making similar annual modifications; and
  • PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), overruling Specialty Healthcare, 357 NLRB No. 934 (2011) and reinstating the traditional “community of interest” standard for determining what constitutes an appropriate bargaining unit where the employer advocates a broader universe of employees than that proposed by the union.

Whether the new Board majority will continue its aggressive pursuit of overruling the prior Board’s more controversial decisions is not known.  But its initial rapid barrage of reversals shows it is off to a formidable start.

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

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  December 2017. 

Minimum Wage Increase

By: Karen L. Piper

Michigan’s minimum wage will be increasing on January 1, 2018.  The current minimum wage is $8.90 per hour.  Effective January 1, 2018, it will increase to $9.25 per hour.

Michigan has a lower minimum wage for younger employees.  Employees aged 16 and 17 can be paid 85% of the applicable minimum wage, as long as that wage rate is equal to or greater than the federal minimum wage of $7.25.  (Federal minimum wage is not increasing.)  Effective January 1, 2018, Michigan’s youth minimum wage will increase from $7.57 per hour to $7.86 per hour.

Michigan also has a lower minimum wage for employees who regularly are tipped for their services by customers.  The employees’ average hourly tips as reported by their employer for FICA (Federal Insurance Contribution Act) must equal or exceed the difference between the tipped wage and Michigan’s minimum wage.  As of January 1, 2018, the new rate for tipped employees will increase from $3.38 per hour to $3.52 per hour, as long as their employer reports that tips received average at least $5.73 per hour.

Now is a good time to review employees’ wages to ensure that employees are paid the rate required by law.  Questions regarding the applicable rate can be directed to experienced employment counsel, such as the author.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

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 are included in the re-post of the article. December 2017.

NLRB’s New General Counsel Targets “Significant Issues” To Rein In Obama Era Rulings

By: Julia Turner Baumhart

Will the Trump administration NLRB reverse such controversial Obama era rulings as the finding of joint employer status based solely on an employer’s potential control over another employer’s employees?  Or invalidating employer handbook rules prohibiting “disrespectful” conduct or requiring confidentiality of workplace investigations?  In issuing the traditional guidelines for submitting significant legal issues for Advice to the new Board, NLRB General Counsel Peter Robb informed NLRB regional directors and other officials on December 1 he intends to do just that, provided the appropriate opportunity arises.

General Counsel Robb, like his predecessors, identified those significant legal issues that should be submitted for legal advice to the Board, to include “cases over the last eight years that overruled precedent and involved one or more dissents,” as well as cases involving issues the Board has not decided.  This means that, in addition to the NLRB’s 2014 holding that handbook rules prohibiting “disrespectful” conduct are unlawful, the General Counsel also targeted controversial 2015 holdings that invalidated no camera/no recording rules and rules prohibiting use of employer trademarks and logos.

Other targeted rulings include the NLRB’s 2014 finding that employees have a presumptive right to use their employer’s email system to engage in Section 7 concerted activities (Purple Communications).  The General Counsel further announced the intent to end existing Advice efforts to extend Purple Communications to other forms of an employer’s electronic communications, including voicemail and instant messaging.

The new General Counsel’s “hit list” also sets its sights on the NLRB’s often maligned 2015 ruling finding joint employer status where one employer has – at most – only indirect or potential control over the working conditions of another employer’s employees.  In a like manner, the General Counsel cancelled an Obama era initiative that advanced the argument that an employer’s misclassification of employees as independent contractors was – in and of itself – a violation of Section 8(a)(1).  Similarly, the General Counsel would like to reduce the scope of the always lurking Weingarten rule, rather than further expand it as the predecessor Board sought to do.  And the General Counsel would like the new Board to reverse the 2015 ruling protecting an employee’s social media postings even where the postings violated EEO principles.

Employers should not expect these and the many other targets announced by the General Counsel to create immediate or automatic changes to existing law, as the Board does not use rule-making to change NLRA law.  To the contrary, the NLRB has to await an appropriate case to come before it to procedurally make changes to existing law.  Should those appropriate cases come to this Board, however, General Counsel Robb has made it plain his office will be ready and able to offer the proper analysis to make those changes a reality.

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

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  December 2017. 

Disability Discrimination Is Still A Priority Issue For The EEOC

By: Karen L. Piper

On November 15, 2017, the Equal Employment Opportunity Commission (“EEOC”) issued its Fiscal Year 2017 Annual Performance and Accountability Report.  The report mentioned that the EEOC had launched a new nationwide public portal designed to provide greater public access to its services.  Individuals now can use the portal to locate an EEOC office; inquire about filing a charge; and check on the status of a pending charge.  An individual also can fill out an intake questionnaire through the portal.  This generally is the first step in filing a charge.  It is expected that the convenience and ease of using the portal will increase the number of EEOC charges filed in the future.

The launch of this new portal may reverse the progress made by the EEOC in reducing the backlog of pending EEOC charges.  The 2017 Report announced that the EEOC had made a substantial reduction – 16.2% – in its backlog of pending charges.  As of September 30, 2017, the inventory of pending EEOC charges was 61,621 – the lowest the inventory has been in over 10 years.

Also noteworthy in the report was the dramatic increase in the filing of merits litigation, i.e., lawsuits based on the merits of a discrimination claim.  The EEOC more than doubled the filing of new merits lawsuits in Fiscal Year 2017.  In 2017, the EEOC filed 184 such lawsuits, compared with 86 lawsuits in 2016 and 142 lawsuits in 2015.  It should be noted that 75 of the 2017 lawsuits, or 41%, involved claims of disability discrimination.  Disability discrimination is still a priority issue for the EEOC.

Employers are advised to pay close attention to employee requests for accommodation in 2018 and to consult with experienced employment counsel, such as the author, as needed, to avoid becoming a charge or litigation statistic in the EEOC’s 2018 Annual Report.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

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 are included in the re-post of the article. November 2017.

Reading the EEOC’s tea leaves: Year-end disability cases reveal priorities

By: Miriam L. Rosen

The EEOC has a fiscal year-end tradition of filing a flurry of cases in September that reflect its key enforcement priorities.  This year was no different. Hitting a five year high, the EEOC filed 86 new lawsuits in September 2017.  The cases reveal clear trends and highlight EEOC priorities.

Reflecting a key priority under its Strategic Enforcement Plan, the EEOC made alleged violations of the American Disabilities Act (“ADA”) a target of its year-end activity.  Over 40% of the new filings – 36 cases – involved ADA violations, including claims alleging failure to engage in the interactive process, failure to provide reasonable accommodations, and maintenance of inflexible leave policies.  So, let’s read the EEOC’s tea leaves to see what insights these new disability discrimination claims can provide employers focused on ADA compliance.

  • In one case, the EEOC alleges that an employer failed to accommodate a security officer who, without any explanation, was removed from her desk job and placed in a foot patrol position. The officer had trouble in the foot patrol position because of a medical condition and asked to return to her seated security position as a reasonable accommodation. The EEOC alleges that the employer violated the ADA when it did not engage in the interactive process, refused the employee’s accommodation request, and ultimately discharged her.
  • In another case involving reasonable accommodations, the EEOC alleges that a hospital failed to transfer an employee with an indefinite lifting restriction to a vacant position.
  • The EEOC alleges in another complaint that a hospitality industry employer terminated an area sales manager after it learned that she had breast cancer and would need time off. The complaint claims that the employer refused to grant leave as a reasonable accommodation; instead, the company fired the employee just one week before she was scheduled to undergo surgery.
  • Zeroing in on its now well-establish priority of combatting inflexible leave policies, the EEOC alleges that another employer violated the ADA by refusing to accommodate a worker recovering from wrist surgery by providing extended leave and terminating her because of her disability.
  • In yet another case, the EEOC asserts that a Hawaiian employer violated the ADA in two ways of particular concern to the agency. The EEOC contends that the employer maintained a rigid maximum leave policy that did not allow disabled employees leaves of absence as a reasonable accommodation beyond the required 12 weeks under the FMLA. In addition, the employer allegedly did not allow employees to return to work if they had any medical restrictions at the end of the FMLA leave period.

It is important to recognize that at this stage the claims noted above are based on the EEOC’s allegations, the employers will defend these claims, and the outcomes of these allegations are uncertain. However, the volume of disability cases is a clear message to employers that a year into a new administration the EEOC is still continuing to focus aggressively on pursuing disability discrimination as an enforcement priority.

Employers can take steps to limit the likelihood of ADA violations by:

  • Ensuring that they are effectively engaging in the interactive process to identify reasonable accommodations and documenting those efforts;
  • Evaluating the need for extended leaves as a reasonable accommodation, rather than maintaining inflexible leave policies; and
  • Eliminating policies that require employees to return to work “100% healed.”

This article was written by Miriam L. Rosen, who is a member 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. November, 2017.