American Society of Employers - Michael Burns

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Fieger Didn't Win This Case

31 January 2023

Fieger Didn't Win This Case

Author: Michael Burns

Geoffrey Fieger is known for being a tough litigator and plaintiff’s attorney. However, his firm lost in a Family and Medical Leave (FMLA) case decided by the Sixth Circuit Court of Appeals last week. The case involved one of his female attorneys requesting unpaid leave to care for her 2-year-old son that she feared had contracted COVID and already suffered from respiratory illness. Before she could formalize the request and provide the necessary FMLA supporting information, Fieger...
Union Membership Drops to 10.1% of the U.S. Workforce in 2022

24 January 2023

Union Membership Drops to 10.1% of the U.S. Workforce in 2022

Author: Michael Burns

The Bureau of Labor Statistics reports that union membership continues its over 40-year decline. Union membership in 2022 declined to 10.1% of U.S. workforce down from 10.3% in 2021. That said, total union membership rose by 273,000 to about 14.3 million workers. But, because of the number of U.S. wage and salary workers (most non-union) grew by 5.3 million workers the reported union membership as a percentage of that total workforce continued to show a decline.

Check Your Limitations of Action Agreement – If You Use One

17 January 2023

Check Your Limitations of Action Agreement – If You Use One

Author: Michael Burns

What is a statute of limitations agreement? In the employment context, this is an agreement between the employer and employee that states the employee agrees to bring any claims against the employer within a specific period of time after employment.

Federal Trade Commission Proposes Elimination of Non-Compete Agreements

10 January 2023

Federal Trade Commission Proposes Elimination of Non-Compete Agreements

Author: Michael Burns

Last week the Federal Trade Commission (FTC) blew the proverbial lifeguard whistle on employer non-compete agreements and said they were going to order “everybody out of the pool.”

Michigan Democrats Eye Repeal of Right to Work

3 January 2023

Michigan Democrats Eye Repeal of Right to Work

Author: Michael Burns

With the Michigan Democratic party taking control of both sides of the Michigan Legislature this past fall, Democrat Legislators began calling for repeal of Michigan’s Right to Work law.

GINA Compliance Primer

20 December 2022

GINA Compliance Primer

Author: Michael Burns

GINA or the Genetic Information Non-discrimination Act has been around for well over 14 years. It prohibits discrimination by an employer against employees or applicants because of genetic information. It also prohibits employers from using genetic information when making employment decisions and restricts them from requesting, requiring, or even purchasing genetic information as well as limiting disclosure of such information if they obtain it.

Michigan Appeals Court Overturns Municipality’s Attempt to Establish Prevailing Wage “Guideline”

13 December 2022

Michigan Appeals Court Overturns Municipality’s Attempt to Establish Prevailing Wage “Guideline”

Author: Michael Burns

Michigan repealed its prevailing wage law back in 2018. Previous to that, the prevailing wage law required businesses (primarily construction) doing work for the state, counties, or local municipalities to pay their workers at wage and fringe benefits rates determined by certain entities such as counties, the National Prevailing Wage Center, or other legitimate source.

As Employer Holiday Parties Return Review Your Safety and Liability Policies and Practices

6 December 2022

As Employer Holiday Parties Return Review Your Safety and Liability Policies and Practices

Author: Michael Burns

In ASE’s most recent survey of employer holiday practices, 68% of respondents reported they will be hosting an in-person holiday event this year. For many employers and their employees this may be the first company social event held in years so let’s review employer safety and liability concerns.

5 Pitfalls to Avoid When Designing a Remote Work Policy

29 November 2022

5 Pitfalls to Avoid When Designing a Remote Work Policy

Author: Michael Burns

Since the start of the COVID pandemic employers have changed the definition of work to include working away from the office and usually (not always) in an employee’s home. To accommodate a productive and legal work from home policy, HR Morning, an HR consulting firm, identifies five pitfalls to avoid when creating your policy.

Michigan Circuit Court Reminds Employers About Voluntary Quitting and UI Benefit Qualification

22 November 2022

Michigan Circuit Court Reminds Employers About Voluntary Quitting and UI Benefit Qualification

Author: Michael Burns

Many human resources professionals have experienced the worker that for one reason or another gets fed up and just walks off the job. It’s unfortunate and disrupting but also sets the machinations of employment policy and law in motion. A recent Michigan Court of Appeals case affirms that employees that walk off the job not only voluntarily quit, but also disqualify themselves from unemployment compensation benefits.

How Michigan Legislature Changes Will Likely Affect State Employment Law

16 November 2022

How Michigan Legislature Changes Will Likely Affect State Employment Law

Author: Michael Burns

For the first time in four decades, the Michigan Democratic Party holds control of the state government. Employers have benefited from GOP control over the years as unfriendly employer legislation was bottled up in committees never to see the light of day. With the Michigan Legislature now controlled by a Democrat majority and a Democrat Governor there is not much to stop the flood of pro-labor legislation that has been held back for years.

NLRB Takes Aim at All Employer Electronic Monitoring Regardless of Business Purpose

8 November 2022

NLRB Takes Aim at All Employer Electronic Monitoring Regardless of Business Purpose

Author: Michael Burns

Employers can use a number of different methods of electronic monitoring in the workplace ostensibly to improve productivity and ensure security of the business. These methods can be:

Employer Guilty in “No Poach” Antitrust Criminal Charge

1 November 2022

Employer Guilty in “No Poach” Antitrust Criminal Charge

Author: Michael Burns

No poaching agreements are arrangements between employers where the parties agree they will not hire one another’s workers. They are also illegal. Last week a healthcare staffing company entered a plea deal with the Department of Justice that held them criminally liable for having a deal in place with an un-named competitor to not raise wages of nurses working in a county school district and to not hire nurses from one another.

Appeals Court Decision Reminds Employers that FLSA Requires Pay for ALL Hours Worked

25 October 2022

Appeals Court Decision Reminds Employers that FLSA Requires Pay for ALL Hours Worked

Author: Michael Burns

Employers often ask ASE about breaks for non-exempt salaried or hourly employees and whether they must be paid. Generally, they should be paid if the break is less than 20 minutes in duration (Sec. 785.18 Rest). Meal periods of at least 30 minutes can be unpaid (Sec. 785.19 Meal).

Understanding the Crazy Logic of the National Labor Relations Board

18 October 2022

Understanding the Crazy Logic of the National Labor Relations Board

Author: Michael Burns

Imagine, if you will, an employee calling the owner of the employing company a derogatory term to their face. The employer understandably fires the employee only to have the National Labor Relations Board (NLRB) order the employer to reinstate the employee.

DOL Publishes Proposed Independent Contractor Rule

11 October 2022

DOL Publishes Proposed Independent Contractor Rule

Author: Michael Burns

Yesterday, the U.S. Department of Labor (DOL) published a proposed rule that adopts a six step economic realities test for determining whether a worker is an independent contractor or not. Publication of this rule will rescind the Trump-era rule narrowing the definition of independent contractor.

SCOTUS Starts New Term This Week

4 October 2022

SCOTUS Starts New Term This Week

Author: Michael Burns

The first Monday in October heralds the start of the U.S. Supreme Court’s (SCOTUS) new term each year. Last year saw Roe v. Wade and the right to abortion overturned. This resulted in the states and their voters now having to decide on that right. To date, this year the conservative U.S. Supreme Court has announced several new “blockbuster” cases it will hear that may impact employers.

Weingarten Rights Refresher for the Non-Union Employer

27 September 2022

Weingarten Rights Refresher for the Non-Union Employer

Author: Michael Burns

As many EPTW readers know, ASE is reporting on the activities of the pro-labor National Labor Relations Board (NLRB) as they change their policy and case decisions tilting the labor playing field in favor of unions and their ability to organize employers.  At the end of July this year, the NLRB released an advice memorandum stating that it was evaluating whether to extend what are called Weingarten rights to non-union workers.

Remote Workers and the Family and Medical Leave Act (FMLA)

20 September 2022

Remote Workers and the Family and Medical Leave Act (FMLA)

Author: Michael Burns

A recent article published in CCH HRAnswersNow Expert Insights looks at the issue of FMLA coverage for remote workers. In this case, a person worked from their home which was well outside what could be reasonably considered within the coverage area of the FMLA.

National Labor Relations Board Restricts Employer Dress Code Practices

13 September 2022

National Labor Relations Board Restricts Employer Dress Code Practices

Author: Michael Burns

National Labor Relations Board (NLRB) issued it first precedent-shifting decision of the Biden Administration on August 29th. Tesla, Inc. (2021). While there has been a lot of conjecture that this NLRB will make some big pro-labor changes when they get the chance, so far it has been more talk and memos than formal decisions – until now.  

NLRB Publishes New Joint Employer Rules

6 September 2022

NLRB Publishes New Joint Employer Rules

Author: Michael Burns

Yesterday, the National Labor Relations Board (NLRB) issued new proposed rulemaking that eliminates the “direct and immediate” control specification in the 2020 rules and adopts a broader rule that finds joint employment if the employers “share or co-determine” essential job terms and conditions. The rule proposal was passed with two board members dissenting.

Organized Labor’s Resurgence?

30 August 2022

Organized Labor’s Resurgence?

Author: Michael Burns

As we approach Labor Day 2022, the media (and most likely the Biden Administration) will be heralding organized labor’s resurgence as it has done at this time of the year for decades.  Jarret Skorup’s Labor Unions Are Not in a “Resurgence” points out the media’s annual labor-fest prognostication with a short listing by year of articles announcing labor’s alleged comebacks heralded over two decades.

Administrative Exemption – An Often Misunderstood and Misused FLSA Classification

23 August 2022

Administrative Exemption – An Often Misunderstood and Misused FLSA Classification

Author: Michael Burns

Of the five major Fair Labor Standards Act (FLSA) exemptions (there are close to 21 other FLSA industry or job exemptions) one of the most misunderstood and misused is the Administrative Exemption. 

For Separation and Other Employment Settlement Agreements Be Sure You Comply with ADEA and OWBPA

16 August 2022

For Separation and Other Employment Settlement Agreements Be Sure You Comply with ADEA and OWBPA

Author: Michael Burns

Last week, by its ruling in Jackson v. General Electric, the Sixth Circuit Court of Appeals reminded employers that they must make sure any settlement type of agreement with an employee complies with the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefits Protection Act (OWBPA). This is not a new development, but the case reminds HR professionals and their legal counsel that any formal agreement settling discrimination or other claims by an employer with an employee,...
Third Circuit Court of Appeals Throws One Small Loss at the NLRB and Big Labor/Biden Camps

9 August 2022

Third Circuit Court of Appeals Throws One Small Loss at the NLRB and Big Labor/Biden Camps

Author: Michael Burns

It has seemed at least to people that track labor issues that the National Labor Relations Board (NLRB) has been on quite a roll favoring unions across the United States. The NLRB with its Democrat appointed Board majority and its very pro-labor agenda is working diligently to change interpretation of the National Labor Relations Act (NLRA) at every turn, including the major issue of joint employment status.

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