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Employment and Labor Law Legislation

2015 Employment and Labor Law Legislation

A summary of the 2014 Midterm Elections results in Michigan:

  • Michigan’s Senate has the Republicans gaining one seat to increase their majority to 27 -15.
  • The Michigan House sees the Republicans also increasing their majority from 59-50 (with one independent) to 63-47.
  • The Republican Governor, Rick Snyder is re-elected for a second term, beating Democrat and pro-labor challenger Mark Schauer.
  • Former U.S. Congressman Gary Peters, a Democrat, is now Michigan’s junior U.S Senator

On the Federal side:

  • The Republicans picked up nine Senate seats to bring their total to 54 from 45. Thus Republicans hold a majority in the Senate for the first time since 2006.
  • In the U.S. House of Representatives, where Republicans already held a majority, the midterm election saw the GOP strengthen its majority in the House to 245 seats vs. 188 seats for the Democrats. Republicans will hold their largest majority since the late 1940s.

For detailed information on 2014 federal and state proposed and passed legislation as well as federal and state regulatory changes see the archived 2014 Employment and Labor Law Legislation page here. [Link]

 

What follows is a summary of major federal and state bills and regulations that are under consideration or pending to date in 2015  (updated 2/7/15)

FEDERAL

NOTE: More recent legislative or regulatory initiatives can be found at the end of the section. If  the law or regulation is ongoing, it can be found at the end of the section on that law or regulation.

IMPORTANT NOTE: SINCE 20I4 MARKED THE END OF THE LEGISLATURE'S SESSION, THE FOLLOWING PROPOSED LEGISLATION HAS BEEN REMOVED FROM CONSIDERATION. HOWEVER, LEGISLATORS TYPICALLY RE-INTRODUCE SIMILAR PROPOSALS AT THE START OF THE NEW SESSION.

NLRB Reform Act

This bill is designed to rein in the General Counsel to the National Labor Relations Board, end partisan advocacy by splitting board members between parties, and encourage timely decision-making by including budgetary disincentives for gridlock. It would turn the NLRB from an advocate to an umpire and keep the general counsel from operating as an activist for one side or the other.

Paid Sick Leave

The Healthy Families Act (H.R. 1286/S. 631 would require employers with 15 or more employees to allow workers to earn up to seven days of paid sick time per year. Employees would be able use this time for themselves or for a family member. This Act would require employers to post a notice of a summary of the Act in conspicuous locations on the employer's premises or in employee handbooks.

National Legalized Medical Marijuana Law

On March 10, 2015, a Senate bill with bipartisan support was proposed to allow those states with legalized medical marijuana to operate without risk of federal law violations. The Compassionate Access, Research Expansion and Respect States (CARERS) Act, was introduced by Sens. Cory Booker (D-N.J.), Rand Paul (R-Ky.) and Kirsten Gillibrand (D-N.Y.). If passed, the bill would have primarily four effects:

  • It would allow those states with legalized medical marijuana (23 states, along with 12 others that allow limited use of low THC products for medical treatment) to operate their programs without risk of federal prosecution.
  • It would reclassify marijuana under the Controlled Substances Act from a Schedule I drug to a Schedule II drug. Schedule II drugs are those that are accepted as less dangerous and seen as having some medical value. Thus, it would allow for more research into the potential medical benefits of marijuana.
  • Banks would not have to fear legal challenges to working with medical marijuana businesses. Medical marijuana retailers in other states have faced challenges working with financial institutions, obtaining lines of credit and the ability to accept credit cards. These challenges have led to the operations of cash-only businesses, which have, in turn, led to increased risks of crime. Without the risk of charges pertaining to money laundering, financial institutions can work with medical marijuana retailers as they would any other business.
  • Physicians with the Department of Veteran Affairs could prescribe medical marijuana.  Many of the illnesses for which medical marijuana is prescribed (e.g., PTSD, spinal cord injuries, traumatic brain injuries, residual limb pain) are suffered by military veterans.  However, because they operate under the umbrella of the federal government, physicians with the Department of Veteran Affairs have been unable to prescribe medical marijuana, even if they are located in a state that has legalized the product.

STATE

The 2013/1014 legislative session wrapped up December 31, 2014. Any legislation pending at the time must be reintroduced in the 2015/2016 and start the legislative process over again.

IMPORTANT NOTE: SINCE 20I4 MARKED THE END OF THE LEGISLATURE'S SESSION, THE FOLLOWING PROPOSED LEGISLATION HAS BEEN REMOVED FROM CONSIDERATION. HOWEVER, LEGISLATORS TYPICALLY RE-INTRODUCE SIMILAR PROPOSALS AT THE START OF THE NEW SESSION.

Prevailing Wage Law – Last year the Michigan House Republican caucus (which spearheaded the passage of Right-to-Work) announced its plan to pick up repeal of Michigan’s prevailing wage law. This was one of the first legislative priorities the state GOP set when it won control of the Michigan legislature and the governorship.

The prevailing wage law requires state-financed or sponsored projects for which a state agency, university, community college or school district is the contracting agent to pay workers a wage of at least the level of other construction workers in a given region.

Opponents of the law estimate that it costs Michigan upwards of $250,000,000 each year. Organized labor sees this as a further attack on it.

Advocates for small business continue to oppose this law. In its Small Business Agenda for 2014, the Michigan branch of the National Federation of Independent Businesses calls for the repeal of the state’s Prevailing Wage Law, saying in part

. . . The state’s current prevailing wage law acts as a “super minimum wage” that sets wages much higher than local construction wages determined by fair competition in the free market. NFIB will be supporting legislation that will eliminate the prevailing wage requirement on public construction projects financed with state taxpayer dollars.

In the runup to the November elections, Senate Majority leader Richardville and Governor Snyder stated this issue was not high on their agendas. However, Richardville’s tenure as Senate Majority leader ended December 31, 2014. The current Majority Leader, Arlan Meekhof, was a sponsor of Michigan’s Right-to-Work law and has expressed interest in eliminating the prevailing wage law. (Updated 11/17/2014)

Repeal of Prevailing Wage Law

Three bills (S 1 and HR 4001, 4002 and 4003) were introduced in January 2015 to repeal the fifty-year old law requiring state and local governments to require contractors doing work for them to pay a wage higher than market rate for work they use private businesses for. Prevailing wage is used primarily in the construction industries doing state government projects.

Governor Snyder opposes the bill and agreed not to sign any bill repealing prevailing wage in exchange for Democrat support for road funding. Michigan House Speaker Kevin Cotter stated that this legislation will be tabled until after Summer 2015. (Updated 2/14/2015).

The Michigan GOP, however, continues to promote this legislation as part of its 2015 78-oint Action Plan

Parolee Hiring Assistance Legislation Introduced in 2014 (HB - 5216, 5217, 5218)

A package of bills designed to encourage businesses to hire parolees was introduced in the House on January 9, 2014.  HB 5216  allows the state Department of Corrections to issue a “Certificate of Employability” to parolees just prior to their release. Under 5217, hiring someone with such a certificate would provide certain protections to employers from either civil or criminal liability for negligent hiring in the event the individual runs into legal problems in the context of his or her employment. HB 5218 offers similar protections to licensing boards to encourage them to issue licenses to otherwise-qualified ex-convicts.

With bipartisan support, all three bills were passed by the House. On December 3rd the Michigan Senate voted to pass bills 5216 and 5217 with immediate effect upon signature by the governor. Governor Snyder signed the bills December 16, 2014 (Updated 12/17/2014)    

Michigan authorizes veterans’ preference in private employment

Governor Rick Snyder has signed into law a bill authorizing private employers to adopt and apply a veterans’ preference employment policy.

The law, which defines a “private employer” as a sole proprietor, corporation, partnership, limited liability company, or other private entity with one or more employees, provides that a veterans’ preference employment policy shall be in writing and shall be applied uniformly to employment decisions regarding the hiring or promotion of veterans or the retention of veterans during a reduction in the workforce.

Public Act 508 (H. 5418), is effective immediately. (Updated 1/19/2015)

Paid Sick Leave

On February 5, 2015 Democrats introduced bills that would require Michigan employers to provide one hour of paid sick leave for every thirty hours of work. The bills would  allow workers to take sick time off to care for themselves or loved ones, including a same-sex partner, grandparents, children and other close family members.

On a related issue, the Michigan GOP has initiated legislation that would prohibit local “sick pay” ordinances intended to create wage and benefit boosts in local municipalities potentially causing a patchwork of employment laws throughout the state. (Updated 2/6/2015)

Garnishment

(House Bill 4119 and 4120) would amend the Revised Judicature Act of 1961 (RJA) to specify the following:

 

A writ of garnishment or periodic payment would not be valid or enforceable unless the writ was served on the garnishee (i.e., the third person, such as an employer, withholding money to pay a debt) in accordance with the Michigan Court Rules.

While a writ of garnishment for periodic payments was in effect, the plaintiff (the person seeking the garnishment) would have to do both of the following: (1) at least once every six months after the plaintiff received the first payment, provide the garnishee and defendant a statement setting forth the balance remaining on the judgment, including interest and costs; and (2) within 14 days after the balance of the judgment had been paid in full, including all interest and costs, provide to the garnishee and defendant a release of garnishment.

Plaintiff Fee

Also, under House Bill 4119, the fee paid by the plaintiff to the garnishee at the time a writ of garnishment is served would be increased from $6 to $35.

Currently in the House Commerce and Trade Committee (Updated 2/10/2015)

Job Training Bills

(SB 69, SB 70 and SB 71) The Senate Education Committee unanimously recommended a bill package modifying the state's New Jobs Training Program to the Senate floor last Tuesday.

The program began in 2008 and pairs community colleges with Michigan businesses by allowing participating colleges to sell bonds to fund skilled training, which is repaid by withholding payments to the Department of Treasury for each employee in a new job.

SB 69, SB 70 and SB 71, sponsored by Sens. Darwin Booher (R-Evart), Peter MacGregor (R-Rockford) and Phil Pavlov (R-St. Clair), respectively, would eliminate a 2018 sunset, remove a $50 million cap on the program after 2016 and grandfather in program participants to allow them to pay their employees 175% of the minimum wage in place at the time the agreement was signed. 

Employment Non-Compete Agreements

Representative Lucido (R-Washington Township) introduced HB 4198 which would severely restrict non-compete clauses in employment agreements.  The bill has been referred to the House Commerce and Trade Committee, and Representative Lucido is interested in moving the bill through committee as soon as possible.

Right to Work – Public Employment

State Rep. Gary Glenn, (R-Midland), introduced two bills expanding Right to Work in public employment further. The first bill would extend Right to Work provisions to public safety personnel, the only group exempted in the 2012 Michigan law that bans a requirement that employees pay union dues as a condition of employment.  The other bill, which would impact even more workers statewide, would ban all public sector unions from representing anyone who is not a dues-paying member of that union.

"It would amend state law for government employee unions and would say that government employee unions can represent only employees who voluntarily join and pay dues," Glenn said.

He said the bill would impact anyone employed in the public sector, including public school teachers and all state, county and city employees. He's current seeking co-sponsors for the two bills before they are introduced in the state House.

FEDERAL REGULATORY

Proposed Rule Changes Impacting Employer Union Organizing Response and Elections

On June 20 and 21 of 2011 the Department of Labor and the National Labor Relation Board proposed rules changing a decades-long interpretation and application of the National Labor Relations Board. On June 20, 2011 the Department of Labor (DOL) issued proposed regulation tightening the interpretation of “advice” under the Labor-Management Reporting and Disclosure Act (LMRDA). On June 21st, the National Labor Relations Board (NLRB) issued proposed rules that it says will “streamline” the union election process.

NLRB Ambush/Quickie Election Rules (Formally Known as “Streamlined” Elections) – (Note: Final rules published December 12, 2014.)

New Rules went into effect April 14, 2014.

History

On April 30, 2012 the NLRB Quickie Election Rule was promulgated.  One of the NLRB’s primary duties under the law is to protect the free and fair secret ballot election to determine whether employees choose to be represented by a union or not. The new rules do the following: 

  1. Provide an NLRB hearing officer the ability to limit the evidence that could be introduced at a representation case hearing
  2. Provide the hearing officer the authority to deny a party the right to file a brief
  3. Eliminate a party’s right to have the NLRB review a decision by a regional director to direct an election
  4. Eliminate current language that requires an election to be conducted within 25-30 days, thereby permitting elections to be held before the 25-day period. The amended rules call for 21 days or fewer
  5. Eliminate a party’s right to have the NLRB review any decisions by a regional director or an administrative law judge regarding post-election disputes
  6. Prohibit pre-election appeals and consolidate all appeals to be heard only after the election takes place
  7. Allow direct election appeals to the Board before an election only in  “extraordinary circumstances”

The Board believes that the proposed rule amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation; that they would simplify representation-case procedures and render them more transparent and uniform across regions; eliminate unnecessary litigation and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request; and would allow the Board to more promptly determine if there is a question concerning representation and, if so, to resolve it by conducting a secret ballot election.

On January 22, 2014 the Federal Register reported that the National Labor Relations Board rescinded its Quickie Election rule. This meant the rules governing organizing elections went back to the way they were previous to December 11, 2011. The restoration pertained to 29 CFR Parts 101 and 102, and confirmed the NLRB’s statements of procedures and rules and regulations to the D.C. District Court’s “mandate that ‘representation elections will have to continue under the old procedures,’” the Board said. Given the circumstances, the NLRB found it unnecessary to provide notice and comment on the restoration.

On February 6, 2014 the National Labor Relations Board issued new proposed “Quickie” Election rules under the reconstituted Board. See above summary. These rules are virtually the same as the previous rules that had been rescinded

On March 27, 2014 new legislation was introduced that would change the rules surrounding NLRB elections and establish legal protections for how NLRB oversees elections. The bill would:

  • Guarantee workers the time to gather all the facts to make a fully informed decision in a union election. No union election will be held in fewer than 35 days.
  • Ensure that employers are able to participate in a fair union election process. The bill provides employers at least 14 days to prepare their case to present before an NLRB election officer and protects their right to raise additional concerns throughout the pre-election hearing.
  • Reassert the board’s responsibility to address critical issues before a union is allowed to represent workers. The board must determine the appropriate group of employees to include in the union before the union is certified, as well as address any questions of voter eligibility.
  • Empower workers to control the disclosure of their personal information. Employers would have seven days to provide a list of employee names and one additional piece of contact information chosen by each individual employee.

See more information above at the Federal Legislation update section. (Updated 5/5/14)

DOL LMRDA Rulemaking Proposal – Persuader Regulations

The DOL states that its new rulemaking allows for more transparency by requiring employers to disclose  whom they are using to provide advice on influencing employees in connection with union organizing and bargaining. Currently employers are only required to disclose consultants they have hired who speak directly to employees on these matters. They are not required to file reports identifying outside consultants who are only giving advice to the employer.

Under the proposed rule, employers will have to report any arrangements with consultants that issue communications on behalf of an employer designed to “directly or indirectly persuade workers concerning their rights to organize or bargain collectively.”

This proposed disclosure requirement, the Labor Department states, also includes information about “union avoidance” seminars and conferences offered to employers by lawyers and labor consultants. This is because the Labor Department states such seminars “involve reportable persuader activity.”

ASE’s position is that both rules significantly curtail employers’ rights to communicate to and inform employees about what unionization means and how it may adversely affect them. ASE is in opposition to any restrictions or the imposition of regulations that curtail the employer’s right to maintain its business free from union influence or organization.

The Persuader Rules remain under review by the White House and the latest information from the Department of Labor on when they may be issued is the summer of 2015 (updated 2/6/15)

Wage and Hour update definition of “spouse” in FMLA

The Department of Labor issued a Final Rule on February 25, 2015 revising the regulatory definition of “spouse” under the Family and Medical Leave Act of 1993 (FMLA).   The rule change updates the FMLA regulatory definition so that an eligible employee in a legal same-sex marriage will be able to take FMLA leave for his or her spouse regardless of the state in which the employee resides. Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage was entered into, whether inside or outside the US. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.  The effective date for the rule is March 27, 2015.

OFCCP issues Proposed Sex Discrimination Guidelines Regulations

On January 28, 2015, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) announced a Notice of Proposed Rulemaking (“NPRM”) to update its Sex Discrimination Guidelines (the “Guidelines”). It is a total rewrite of the current regulations. The NPRM was published in the Federal Register on January 30, 2015, followed by a sixty-day comment period.

The OFCCP had not substantively updated the Guidelines since 1970 despite forty-five years of changes in discrimination laws through legislation and court decisions.  While the proposed regulations seek to update requirements in accordance with “existing law and policy,” many of the provisions go beyond the parameters of current statutory and other legal obligations, including:

  • The adoption of the “implicit bias” theory of discrimination because “[r]esearch clearly demonstrates that widely held social attitudes and biases can lead to discriminatory decisions, even where there is no formal sex-based (or race-based) policy or practice in place” despite the Supreme Court’s explicit rejection of the implicit bias theory in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-54; 
  • A new requirement that aligns with the EEOC’s controversial guidance that contractors must provide light duty to all pregnant employees regardless of whether an impairment substantially limits a major life activity even though the issue is pending before the Supreme Court in Young v. UPS;
  • A new requirement that contractors allow transgendered individuals to use the restroom of his or her choice (despite Congress’s decision not to enact Employment Nondiscrimination Act); 
  • A prohibition on contractors imposing a shorter maximum amount of pregnancy leave as compared to the maximum time off allowed for other types of medical or short-term disability leave;
  • More robust protections regarding compensation discrimination which include Equal Pay Act protection.

OFCCP issues final rule on LGBT Executive Order

On December 3, 2014, the OFCCP announced its final rule on regulations to implement an Executive Order (EO) signed this summer by President Obama which bans discrimination against LGBT workers by federal contractors. The final rule, which was published December 9, 2014, revises the OFCCP’s regulations at 41 CFR Parts 60-1, 60-2, 60-4, and 60-50. It does not require contractors to conduct any data analysis with respect to the sexual orientation or gender identity of their applicants or employees. Nor does it require contractors to collect any information about applicants’ or employees’ sexual orientation or gender identity. However, contractors may ask applicants to voluntarily provide this information, although doing so may be prohibited by state or local law. In any event, the rule prohibits contractors from using any information gathered to discriminate against an applicant or employee based on sexual orientation or gender identity. The rule was slated for publication in the Federal Register on December 9, 2014, to take effect 120 days thereafter. It will apply to covered contracts entered into or modified on or after that date.   The final rule and related information, including a FAQ, is available on the OFCCP’s website. This rule may be subject to multiple litigations once effective by Faith based organizations for an exception based on the Hobby Lobby Supreme Court Case as well as employer groups for violating the Administrative Procedure Act process.

 

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