EverythingPeople This Week!

16

Apr

2019

Federal Employment Legislation Introduced So Far This Year

Author: Michael Burns

With so much state law change being introduced and passed around the country and in Michigan, and until fall of last year Congress and the Executive branches being controlled by business-friendly Republicans, there was not much federal employment legislation to be concerned about. The Executive branch has been busy trying to adjust employment and labor regulations, but these adjustments have been to roll back the more onerous regulations implemented during the Obama administration.

9

Apr

2019

U.S. Department of Labor Proposes 4-Factor Joint Employment Test

Author: Michael Burns

Employers that have franchise operations, engage independent contractors, or both have had the rules and protections that come with these business relationships turned on their heads in recent years. A newly proposed 4-factor test may simplify things.

2

Apr

2019

NLRB Continues to Look at Employer Policy and Rules

Author: Michael Burns

The National Labor Relations Board (NLRB) continues to review union and non-union employer policies and rules.  In an Advice Memo published last week by the NLRB, the Board’s advice division looked at two employer rules through the lens of its 2017 Boeing decision. This decision trimmed back considerably the previous NLRB’s position that if an employer’s rule could in any way infringe upon an employee’s right to engage in protected concerted activity it would...

26

Mar

2019

USDOL Publishes FMLA Opinion Letter Clarification

Author: Michael Burns

The U.S. Department of Labor (DOL) issued an Opinion Letter clarifying how employers must go about allowing an employee to use other time off (paid or unpaid) in conjunction with the Family and Medical Leave Act (FMLA) requirements.

19

Mar

2019

Limitation of Actions Clause Can Fail if Not Done Correctly

Author: Michael Burns

Several weeks ago we wrote about how a limitation of actions agreement/clause can effectively restrict state wrongful employment actions to a much shorter period of time – normally 180 days. It is recommended a limitation of actions clause not be included in the employee handbook. They can be placed on an employment application form in its boilerplate text section normally just above the signature and date lines, or it can be a separate agreement signed at the point a job offer is made.

12

Mar

2019

More Information on the Proposed Regulation on Exemption Salary Level Test Released

Author: Michael Burns

As reported last week in an ASE breaking news update, the U.S. Department of Labor (DOL) released its long-anticipated changes to its white-collar exemption regulations. The big change was a “split the baby” approach to resolving a regulatory agency overreach by the DOL back in 2016.

8

Mar

2019

U.S. DOL Sets Salary Level Test Threshold at $35,308/yr.

Author: Michael Burns

Late yesterday, the U.S. Department of Labor published its new proposed rule raising the Fair Labor Standards Act (FLSA) “white collar” exemption to $35,308/year or $679/week from $23,660/yr. or $455/week. The salary level test is one of three criteria that must be met to legally exempt an employee from overtime and some recordkeeping requirements.

5

Mar

2019

Unions Cannot Make Nonmembers Pay for Union Lobbying

Author: Michael Burns

The National Labor Relations Board (NLRB) held last Friday that unions can’t force workers that choose not to be in the union to pay for its lobbying activities. This decision holds that fair share fees that some unions require nonmembers to pay en lieu of being in the union can’t be used for lobbying. This follows the U.S. Supreme Court's 1988 decision in Communications Workers of America v. Beck. That decision found that if a worker objected to his/her dues being used for...

26

Feb

2019

Another Court Decision Affirms Importance of Documentation and Record Keeping

Author: Michael Burns

One of the most basic supervisory/human resource responsibilities should be documentation of performance and disciplinary actions; however, it is often the most neglected. Notes and write-ups as well as formal performance reviews need to be consistently conducted and maintained on record by the employer.

19

Feb

2019

Developing or Integrating Your Organization’s Paid Time Off to Comply with Michigan’s New PTO Law

Author: Michael Burns

With the passage of and impending enactment date (March 29, 2019) of Michigan’s new Paid Medical Leave Act, employers that are covered are hastily reviewing their existing vacation, sick, and personal time, as well as formal Paid Time Off benefits and policies to see how far off they may be from compliance with the new law.

5

Feb

2019

Retraction of Narrower Independent Contractor Definition Continues

Author: Michael Burns

Of the many Obama era labor and employment overreaches, the re-defining of joint employer and independent contractor was (and continues to be) arguably the most controversial. The National Labor Relations Board (NLRB) previously focused on union-employer relations.  But during the Obama Administration it imposed itself on the world of corporate law by reconstruing the law and using its case decision making authority to find most independent contractor relationships void.  This in...

29

Jan

2019

Union Membership Continues to Slip

Author: Michael Burns

The Bureau of Labor Statistics (BLS) released its report on 2018 union membership last week and total union membership continues to slip as a percent of the U.S. workforce. For 2018 total union membership – public and private employers – stood at 10.5% (14.7 million workers). That downward trend of 0.2 percentage points from 2017, continues a downward trend from the union movement’s heydays of the late 50’s/early 60’s where union membership was estimated at over...

22

Jan

2019

Fluctuating Workweek Method to Determine Regular Rate of Pay

Author: Michael Burns

Last week’s EPTW article, Keeping up on Your Fair Labor Standards Act Understanding, reviewed the recent Department of Labor Opinion Letter (FLSA 2018-28) outlining a legal method to calculate a regular rate of pay when more than one pay rate is paid to an employee. The Opinion Letter stated an employer may not arbitrarily set a regular rate from two or more pay rates that it uses to calculate overtime from. It must calculate the regular rate by averaging hours worked and the different...

15

Jan

2019

Keeping up on Your Fair Labor Standards Act Understanding

Author: Michael Burns

Does an Employer Have to Pay an Applicant for Interviewing for a Job? Of course not, one might say. But not so fast. Does your company use a “working interview” to select qualified employees? Some companies use this form of applicant screening. As the name suggests, a “working interview” has the applicant performing work or they have the potential employee attend training during the selection process.

8

Jan

2019

DC Appeals Court Ruling on Joint Employer Status Does Not Clear Up Much for Employers

Author: Michael Burns

Over the holidays the District of Columbia (DC) Appeals Court held that although the National Labor Relations Board (NLRB) may determine joint employer status, its test in the Browning-Ferris decision handed down in 2015 did not do the job properly.  The original Browning-Ferris decision handed down by the NLRB held that even “when two entities never have exercised joint control over essential employment terms, and given when any such joint control is not ‘direct and...

18

Dec

2018

When Technology Takes a Job, Do Unions Have a Say?

Author: Michael Burns

With the impending autonomous automobile era, comes the next iteration of collective bargaining concerns. When an employer is organized by a union the jobs are normally what is part of the union and spoken of in the labor contract – not the individual workers that hold the job. Therefore, when jobs and job security intersect, the issue of work classification changes are what is of concern to the union.

14

Dec

2018

Breaking News - Governor Snyder Signs Michigan Minimum Wage and Earned Sick Time Laws

Author: Michael Burns

Late Thursday, Governor Snyder signed the Minimum Wage law (SB 1171) that takes Michigan’s minimum wage to a maximum of $12.05/hr. in 2030 and removed the future indexing of the minimum wage to inflation. He also signed the Earned Sick Time law (SB 1175) that implements paid time off for employee or family member illness, injury, domestic violence, and sexual assault. The new law applies to employers with over 50 employees.

11

Dec

2018

Amended Employee Time Off and Minimum Wage Bills Await Governor’s Signature

Author: Michael Burns

As many employers know by now, the Michigan Legislature amended the two expensive and administratively burdensome laws this month. They now go to the Governor’s desk for signature. However, Governor Snyder is being somewhat cagey in his support for passage. On Sunday’s Channel 4 show, Flashpoint, Devin Scillian asked Governor Snyder if he would be signing the laws. Governor Snyder responded he was looking at all laws passed by the lame duck Legislature for policy value...

4

Dec

2018

Michigan Paid Time Off and Minimum Wage Laws in Process of Amendment

Author: Michael Burns

The Michigan Legislature wasted no time addressing the amendment of the expensive and poorly constructed Minimum Wage and Earned Sick Time laws passed earlier this year. Last evening the State House of Representatives followed the Senate’s passing of both laws and sent them to the Governor's desk for signature.

27

Nov

2018

Michigan’s Paid Time Off Law, Whether Repealed or Amended, Compels Employer Review of Its Paid and Other Time Off Policies

Author: Michael Burns

As covered in the November 21st issue of EPTW, Michigan employers have to monitor what paid time off benefits will be required of them going forward. Will Michigan’s GOP-led legislature repeal the Michigan’s Earned Sick Time Act entirely or just amend it in order to relieve some of its expense to smaller employers? It appears that pro-business parties may just go for amending the law down to some “reasonable” degree.

20

Nov

2018

Work to Begin on Michigan Paid Time Off and Minimum Wage Laws Amendment

Author: Michael Burns

Our Michigan Legislature will be returning to work the Tuesday after Thanksgiving. The session between then and the end of the year is what is called the Lame Duck Session. Lame Duck is a term used in politics that refers to elected officials whose successor has already been elected so they have less influence because they only have a limited time left serving. Though that sounds a bit depressing, the flip side of the coin is a lame duck is free to do things without much fear of consequence.

13

Nov

2018

Michigan - Democrat Governor, Republican House and Senate – What Should Employers Expect?

Author: Michael Burns

Last week Michigan’s electorate voted in Democrat Gretchen Whitmer as Michigan’s Governor, breaking eight years of solid GOP governance in Michigan. Not to mention the state Republican Supreme Court as well. Employers, overall, have enjoyed a pro-business environment for quite a long time where governance has been pragmatic and not by “gotcha” legal and regulatory enforcement.

6

Nov

2018

UAW Hypocrisy and Other Lapses of Reason

Author: Michael Burns

In case you missed this, the UAW is buying outgoing UAW President Dennis Williams, now retired, a “cottage”. The original cost estimate for this up-north getaway was $1.3 million as reported by the Detroit News. Union member dues (recently increased from two hours of work per month to two and one half hours) will pay for this “cozy” 1,885 square foot lodge consisting of granite counters, stainless steel appliances, a woodburning fireplace, wine cooler, patio...

29

Oct

2018

Election and Voting Rights – Employee Protections

Author: Michael Burns

Next Tuesday the country will vote in its midterm elections. By some accounts this election is likely to see a lot more people voting than normal. That means employers may see workers coming in late or leaving early or during the day to vote. Employers should be aware that in certain states employees taking worktime to vote are protected from employer discipline or discharge. In some states, workers must even be paid while out to vote.

23

Oct

2018

OSHA Continues to Walk Back (Clarify) Onerous Rule that Curtailed Employer Post-Accident Drug Testing

Author: Michael Burns

Just over two years ago, the federal Occupational Safety and Health Administration (OSHA) published rules that more than suggested employers could no longer have mandatory post-accident/injury drug testing. The rule amended 9 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses.

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